Raghbir Singh . vs Smadh Baba Santokh Gir

R.L. Anand, J.—The learned counsel for the appellants cites 1998(1) Recent Revenue Reports 533 and 1997 (2) R.C.R. (Civil) 6 and

submits that even if it is assumed for the sake of arguments that the leasedeed Ex. D1 dated 6.7.1987 was unregistered, still it can be determined

about the nature of the possession of the appellants and admittedly the revenue record shows that the appellants were the tenants at will and in

these circumstances a valid presumption of lessee should be drawn in favour of the appellants. It has also been submitted by the learned counsel

that in a different litigation the plaintiff had admitted that the defendants were the lessees of the land in dispute. Moreover, PW2, the witness of the

plaintiff, has also made an admission that the defendantappellants are in possession of the suit land in the capacity of lessee and that he had

executed the Pattanama in favour of the appellantdefendants.

I have considered the submission made by the learned counsel for the appellants and in my opinion none of the contentions can advance the

case of the appellants. The case of the appellants was specific that they took the land in dispute on lease vide lease deed dated 6.7.1987.

Admittedly, this document is neither stamped nor registered. This document is a waste paper and can only be looked into for collateral purposes.

The relationship of the landlord and tenant can only be created by an agreement. Once the effect of document Ex. D.1 is diluted to the level of

collateral purpose, it can be reasonably inferred that no relationship of landlord and tenant was created between the parties and in this view of the

matter the status of the possession of the appellants will only be of a trespasser and, therefore, the suit of the plaintiffrespondent has been rightly

decreed. In this regard, I may quote the following observations made by the first Appellate Court as contained in para Nos. 8 to 10 of the

judgment dated 31.3.1999 :

On the other side, learned counsel for the plaintiff has submitted that the agreement to lease is nothing but a waste paper. No consideration

passed from the side of the defendants to the plaintiff. The plaintiff has been receiving the amount on account of the licence fee and he admitted

only this fact in the written statement filed in the case of Gurdial Gir v. Smadh Baba Santokh Singh. In the absence of any mortgage deed or the

lease deed, the defendants cannot continue in possession of the suit property. Even the witnesses produced by the defendants have admitted that

no consideration passed at the time when the agreement of lease dated 6.7.87 was written. The findings of the lower Court may be affirmed and

the appeal be dismissed.

I find that there is no force in the contention of the learned counsel for the defendants/appellants. Admittedly, no mortgage deed or lease deed

was executed. The question is as to whether the defendants can be permitted to retain the possession on the basis of agreement of lease dated

6.7.87. I am of the confirmed view that the defendants cannot be permitted to continue with possession without any valid right or title in their

favour. Agreement of lease dated 6.7.87 (Ex. D1) is not a registered document. At the same time I find that it was not executed on behalf of the

plaintiff i.e Smadh Baba Santokh Gir. It might have been executed by Jasbir Gir in his personal capacity. The only remedy with the defendants was

to seek the specific performance of the agreement of lease dated 6.7.87 (Ex.D1). The defendants did not seek the remedy available to them.

Therefore, they cannot retain possession on the basis of agreement of lease (Ex.D1). At the same time, I find that the lower Court has rightly held

that the agreement of lease has been proved to be without consideration. The defendants examined Bhagwant Singh (DW2). He stated that Jasbir

Gir lodged the report with the Patwari Halqa that he has received the amount worth Rs. 1,06,000/. The report was thumb marked by Sampuran

Singh. In his crossexamination he admitted that no money was paid in his presence. There was no other person with Jasbir Gir. Sukhminder Singh

was examined as DW3. He stated that he is a witness of agreement of lease (Ex. D1). He stated that about six years back he had come to Tehsil

complex for some work. There Jasbir Gir called him and told him that he had purchased land for a sum of Rs. 1,06,000/. Raghbir Singh took the

land on lease from Jasbir Gir for 99 years. He signed the stamp paper worth Rs. 10/ which is Ex. D.1. It was read over to him. In his

crossexamination he stated that the writing was prepared by the petition writer. In his presence copy of the jamabandi for 4 killas was given. The

lease deed was written for 99 years. In his presence no consideration passed. However, he admitted the consideration. In the presence of the

Petition Writer no amount was paid by Raghbir Singh to Jasbir Gir. The Patwari with whom the report was lodged was not examined. In these

circumstances the lower Court has rightly held that the consideration of the agreement of lease has not been proved, therefore, the same could not

be acted upon.

At the same time I find that the evidence produced by the defendants is contradictory. The defendants have relied upon the report lodged with

the Patwari which is Ex. D3. It shows that Jasbir Gir took the money worth Rs. 1,06,000/ for his domestic needs. Admittedly, the property

belongs to Smadh Baba Santokh Gir. Therefore, Jasbir Gir could not create the mortgage in his personal capacity on behalf of the plaintiff. This

report cannot bind the interest of the religious institution. Even the entries in the Khasra Girdawari (Ex.D4) cannot help the defendants to retain the

possession. In para 3 of the written statement, the defendants alleged that they paid a sum of Rs. one lac to Jasbir Gir as mortgage money and the

matter was reported to the Patwari Halqa on 28.10.86. If this fact is correct, then the report lodged with the Patwari, which is Ex. D7, cannot be

believed because in the report it has been written that a sum of Rs. 1,06,000/ was paid. If the defendants were truthful persons, then they should

have got executed the agreement of mortgage and not the agreement of lease for 99 years which amounts to permanent alienation. Even the

documents (Ex. D5 and Ex. D6) produced in additional evidence cannot help the defendants because Jasbir Gir could not create permanent

encumbrance on the property of Smadh. If jasbir Gir has admitted certain wrong facts on behalf of Smadh Baba Santokh Gir, the institution is not

bound by the same. He may be held liable personally but the acts of Jasbir Gir are such which cannot be permitted to bind the interest of Smadh

Baba Santokh Gir. In the circumstances, the findings recorded by the lower Court on issue Nos. 1 and 4 are affirmed. The authority Umrao v.

Sardar (1978 P.L.J. 117) (supra) relied upon by the learned counsel for the appellants cannot help him in the facts and circumstances of the case.

The case is also not required to be remanded for framing of issue regarding oral mortgage because the parties have led the evidence on that plea

and they fully knew while leading additional evidence that the said plea has been duly covered. Thus it will not be in the interest of justice to remand

the case for further trial.

No. merit. Dismissed.