Banamali Bauli and Another vs Gayaram Mahto

James, J.—In the Record of Rights which was preparted in 1924 under Chap. XII Chota Nagpur Tenancy Act, for Radha nagore village in Manbhum Dtstrict. plot No. 348 was recorded, after a dispute with Gayaram Mahto, as appertaining to the raiyati holding of Banamali Bauri and his brother. In 1926 Gayaram instituted a suit against the recorded tenants for declaration of title to this land as a part of his raiyati holding and for recovery of possession. The plaintiff produced as his document of title an unregistered lease of 1892 which the Munsif of Dhanbad marked as an exhibit, though he declined to look into it on the ground that it could not be used in evidence for want of registratian. The learned Munsif after considering the evidence in the case dismissed the plaintiff''s suit. The plaintiff''s appeal was heard by the Subordinate Judge of Dhanbad. The learned Subordinate Judge held that the unregistered lease was admissible in evidence to explain the plaintiff''s possession; and he found that the document was genuine and that the plaintiff had title to the property which he claimed. Finding further that the plaintiff was in possession, he reversed the decision of the Munsif and decreed the plaintiff''s suit. The defendants have come up in second appeal from that order.

On behalf of the appellants Mr. S.C. Mazumdar argues that the decision of the learned Subordinate Judge should be regarded as vitiated by the; fact that it is based on the main on inadmissible evidence. The unregistered lease whether it was admissible or not for collateral purpose, was utilised by the learned Subordinate Judge as a document proving title; and Mr. Mazumdar argues that it should be regarded as excluded by sub Clauses (a) and (c), Section 49, Registration Act. He further argues that the learned Subordinate Judge has not given sufficient attention to the fact that the finally published Record of Rights is in favour of the defendant, so that the onus lay on the plaintiff to prove his possession, pointing out that the learned Subordinate Judge, after finding that the lease gave title, held that since the plaintiff had title, his possession must be presumed and that the onus was thus transferred to the defendants to prove that the plaintiff had not been in possession within twelve years of the suit. The learned Subordinate Judge did actually find that the plaintiff was in possession accepting the evidence of the plaintiff''s witness; but Mr. Mazumdar argues that the manner in which this evidence has been discussed in the case indicates that if the learned Subordinate Judge had not been relying upon the unregistered lease, he would have attached no weight to the plaintiff''s evidence regarding possession.

The first point for consideration is whether this unregistered lease is a document which u/s 17, Registration Act, must be registered. Mr. A.B. Mukharji on behalf of the respondent suggests that the document should be regarded not as a lease but an Under taking to give a lease after the land had been reclaimed, similar to the amalnama which forms the subject of discussion in Dwarkanath Shah v. Ledu Sikdar 33 C. 502 The lease is in the following terms:

This Nayabadi settlement is made in the following way. We are settling waste land named Ghurnibera Khudanala in our village Radhanagar with Gayaram Mahto. And after taking Rs. 49 as salami we make settlement of the land described in the following boundaries and within this boundary you will be able to prepare paddy lands after cutting the high lands. Its annual rent will be Rs. 4-8-0 and road cess 4 annas 2 pies which you will pay to us and take receipt from us. When you have prepared paddy lands six annas will be remitted and then 10 annas jama will be taken, To this effect this deed of Nayabadi settlement is executed.

The final clause of this lease is explained to mean that when the land shall have been finally reclaimed a settlement of fair rent will be made from which the tenant will be entitled to an abatement of six annas in the rupee. Now whether there is a promise to lease or not, this is actually a lease of land for the purpose of reclamation, and it is the document on which the plaintiff bases his claim. Even in the case of Dwarka Nath Saha v. Ledu Sikdar 33 C. 502 the learned Judges remarked that if the unregistered amalnama had been produced at any time during the period of nine years for which this tenant was actually holding under its terms, it would have been inadmissible for want of registration. That document was not at the time of the suit a lease creating an existing title, and it was treated as admissible to show the nature of the defendants'' possession, Mr. A.B. Mukharji also cites the decision in Janki Kuer v. Birj Bhikhan Ojha 79 Ind. Cas. 26 : 3 Pat. 349 : (1924) Pat. 185 : 5 P.L.T. 541 : B L.R. 1924 Pat. 641 where Sir Dawson Miller remarked that there was ample authority for the proposition that a document inadmissible for the purpose mentioned in Section 49, Registration Act, may nevertheless be admitted for a collateral purpose, as for example, to explain why a donee under a deed imperfect through lack of registration was in possession. It appears to me to be clear that the document on which the plaintiff relies in this case is a lease which required to be registered u/s 17, Registration Act. Though it is not registered, it might have been received in evidence for purpose other than those specified in Section 49; but not as affecting any Immovable property mentioned in it or as evidence of a transaction affecting such property. In other words if it had first been definitely found that the plaintiff was in possession this unregistered lease might have been taken in evidence, not as proof of his title but for the collateral purpose of explaining his present possession. But this is not the manner in which the learned Subordinate Judge has treated the document in this case. He first discusses whether the document is genuine, relying here as Mr. Mazumdar has pointed out on other inadmissible evidence. Having come to the conclusion that the lease is a genuine document he expresses himself in the following terms:

I am decidedly in opinion that the hukumnama is a genuine document and that the disputed land along with other lands were taken settlement of by the plaintiff as in his case, that is to say, plaintiff has satisfactorily proved his title regarding the disputed plot. The defendant, on the other hand, is his evidence had to admit that he had no papers worth the name to prove his title regarding the disputed plot. Plaintiff''s title having been established his possession would be presumed as possession follows title.

Thus this document is used in the clearest terms as a document proving title; and it is on the presumption which follows from the fact that title has been proved by this document that the learned Subordinate Judge bases his finding regarding possession. It is indeed not possible to suggest that the learned Subordinate Judge, finding that the plaintiff was in possession, proceeded to examine the unregistered lease in order to find whether it explained his present possession or not As Mr. Mazumdar points out, the entry in the Record of Rights was against the plaintiff, and until that was definitely rebutted by evidence, it must be presumed u/s 84, Chota Nagpur Tenancy Act, that the defendants were in possession. Regarding the oral evidence which was adduced by the plaintiff on the subject of possession, the learned Bubordiuate Judge remarks that the evidence was not very satisfactory; but since the plaintiff has satisfactorily established his title and the defendants having failed to prove their adverse possession, the evidence on the side of the plaintiff on the question of possession must be accepted. It is clear, therefore, that the learned Subordinate Judge bases his finding regarding both title and possession on this unregistered lease which was inadmissible in evidence. Further, in his discussion of the question of whether the lease is a genuine document or not, the learned Subordinate Judge treats as evidence statements made before an Assistant Settlement Officer by persons who are not parties or witnesses in the present case. The learned Subordinate Judge discovered the fact that these statements had been made from the judgment of the attestation officer which was filed in this case; and he certainly erred in treating these statements as amounting to substantive evidence in the suit.

Mr. A.B. Mukharji points out that u/s 167, Evidence Act, this decision should not be set aside on the ground that it is based on inadmissible evidence if there is evidence on the record by which the decision could be justified. I do not find any thing in the learned Subordinate Judge''s judgment which can be regarded as definite acceptance of evidence if it is taken apart from the discussion of the unregistered lease and of the statements made by the landlords before the attestation officer. Indeed the decision is practically entirely based on the lease and on these statements. In the circumstances the decision of the learned Subordinate Judge must be set aside and the appeal will be remanded for re-hearing in accordance with law. Costs will abide the ultimate result of the case.