1. This appeal arises out of a suit brought by the plaintiffs for recovery of possession of certain lands on declaration of title.
2. It appears that at one time these lands were held by the predecessor of the defendants under the predecessor of the plaintiffs as an under raiyati holding. The decision of the suit turns on the question whether that under-raiyati had been surrendered and abandoned. The tenancy of the defendants predecessor, one Musabdi Fakir, was evidenced by a registered kabuliyat executed on the 10th Assar 1293. The case of the plaintiffs was that the holding was relinquished in Chait 1297 and in proof of that allegation they adduced in evidence inter alia the deed of relinquishment Exhibit 3. This document is unregistered. The defendants denied the alleged relinquishment of their predecessor in-title and in. support of their case produced inter alia a certain number of dakhilas. Of these dakhilas only two marked Exhibits E and E1 were admitted in evidence by the Court of first instance.
3. The contentions before us in support of this appeal are that Exhibit 3 not being a registered document is inadmissible in evidence, and secondly, that the Court of first appeal should have directed the admission in evidence of all the dakhilas produced by the defendants and should have taken or directed the taking of evidence to prove their authenticity.
4. In support of the first contention that Exhibit 3 not being a registered document is inadmissible in evidence, the learned Vakil for the appellants refers to proviso 4 of Section 92 of the Evidence Act, to the decision of (his Court reported as Sarat Chandra Sinha v. Nritya Gopal Biswas 8 Ind. Cas. 47 : 13 C.L.J. 284. and also to the Full Bench decision reported as Lalit Mohan Ghose v. Gopali Chauk Coal Co. Ltd. 12 Ind. Cas. 723 : 39 C. 284 : 14 C.L.J. 411 : 16 C.W.N. 55. The proviso 4 to Section 92 of the Evidence Act, however, refers merely to oral agreements, and in the two decisions to which we have been referred the documents in question were documents varying in essential particulars registered leases, the registration of which was compulsory. It was held, therefore, in those cases that the said documents being documents varying the lease were part of the lease and, therefore, must also be registered. Here the document in question is one extinguishing the interest created by the document of 1293, and as it has not been shown that the said interest was valued at any sum approximating to Rs. 100, its registration is not compulsory. Further it appears that the consideration for this document was a sum of about Rs. 50 so that, as held by the Munsif, it might also be regarded as a conveyance. In that view it does not require registration having regard to the value of the interest transferred.
5. With regard to the dakhilas, the reason given by the first Court for not accepting more than two of the dakhilas produced by the defendants was that the dakhilas had not been produced in evidence in the previous criminal case between the parties. That obviously was not a good reason for refusing to admit them in evidence, though it would doubtless be one of the considerations going to affect their value. But as it has been found that the two dakhilas admitted in evidence, those two having in fast been produced in the previous criminal case, are fabricated, we cannot suppose that the defendants appellants have been in any way damnified by the rejection of the others.
6. For these reasons we dismiss this appeal with costs.