1. The suit that has given rise to this appeal was one brought by a tenant for recovery of possession of some land from defendant 1, who is the, landlord. The allegations on which the suit was brought were that the plaintiff held the Kind as a raiyat under defendant 1; that he gave a usufructuary mortgage of the property to the pro-forma defendants and subsequently in Agrahanyan, 1330 B.S., got back possession of his property on the whole amount of the mortgagee's dues being satisfied from the usufructs of the property and that the plaintiff was thereafter in possession of the property till 10th Baisakh, 1331, B.P., when he was dispossessed by his landlord, defendant 1. The plaintiff's claim was resisted by the landlord defendant on the allegation that there had been no usufructuary mortgage as alleged by the plaintiff, but that the transaction between the plaintiff and the pro forma defendant was an out and out sale, and that, as the plaintiff by that sale abandoned the holding without making any arrangement for payment of rent, the landlord took possession of the property as ho was entitled to do. The Court of first instance believed the defendant's story of abandonment and dismissed the plaintiff's suit. On appeal, the lower appellate Court, holding that the transaction was an usufructuary mortgage and not an out and out sale, and, therefore there had been no abandonment, reversed the decision of the trial Court and gave a decree to the plaintiff. The defendant landlord has appealed to this Court.
2. The principal point that was taken before us, on behalf of the appellant, was that the lower appellate Court was wrong in law in admitting in evidence a certain document, Ex. (1), which was not admissible in evidence on the ground that the document was not registered. Ex. (1) is a document, whereby the usufructuary mortgagee admitted that his claim had been paid off and that he released the property to the plaintiff's mortgagor's possession. The contention on behalf of the appellant was that, under Section 17, Registration Act, registration of this document was compulsory and that, inasmuch as this document was not registered, it was under Section 49, Registration Act, inadmissible in evidence. I do not think this contention is sustainable. In the first place, it is to be observed that for the plaintiff mortgagor to get possession of his property, execution of a document Ex. (1) was not at all necessary. It is contended that by this document, Ex. (1) which purports to release the land to the possession of the plaintiff, the right of the mortgagee to remain in possession of the property was extinguished and, that being so the document under Section 17(b) required registration. But when it appears, according to the mortgagee's own admission, that his dues were all fully paid off, the mortgagee] had no longer any right to possess the land subsisting in him and, if there was no right subsisting, there was nothing that could be either transferred or extinguished. In this view of the matter. I am of opinion that Ex. (1) is a document which does not require registration under the Registration Act, and the learned Subordinate Judge was: not wrong when he admitted it as evidence in the case.
3. Another point that was taken before us was that the learned Subordinate Judge had been wrong in law in relying on the recital in a judgment in a criminal case and in using that recital against the defendant. If the learned Subordinate Judge used the recital in this judgment of the criminal Court, he used it for the purpose of showing that the story of a usufructuary mortgage as set up by the plaintiff was not an afterthought. But before making any use of the recital in that way, the learned Subordinate Judge had, after a consideration of the evidence and circumstances of the case, come to a definite-finding that the case was a case of mortgage or poshani and not an out and out sale. If the learned Subordinate Judge referred to the recital in the judgment in the criminal case, apparently he did so, not for the purpose of arriving at his finding on the point, but for the purpose of giving to it an additional strength as it were.
4. The third contention was that the lower appellate Court had not considered the presumption that would arise from the settlement papers in favour of the defendants as fully as it ought to have done. A perusal of the judgment of the lower appellate Court will show that the learned Subordinate Judge had the settlement papers before him, and he did consider the entries that were to be found in it.
5. All the points that were urged before us therefore, fail. The appeal is accordingly dismissed with costs.
6. I agree.