Raghbir Singh vs Smadh Baba Santokh Gir

R.L. Anand, J.—The Learned Counsel for the appellants cites 1998 (1) RRR 533 and 1997(2) RCR (Civil) 6 and submits that even if it is assumed for the sake of arguments that the lease-deed Ex. D 1 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 wilt 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 defendant-appellants are in possession of the suit land in the capacity of lessee and that he had executed the Pattauama in favour of the appellant-defendants.

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 are 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. D1 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 plaintiff-respondent 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 3l.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 lime 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 o the basis Disagreement of lease dated 6.7.87.1 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. D-l) 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. D-1). The defendants did not seek the remedy available to them. Therefore, they cannot retain possession on the basis of agreement of lease (Ex. D-1). 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 (DW-2). He stated that Jasbir Gir lodged the report with the Palwari Halqa that he has received the amount worth Rs. 1,06,000/-. The report was thumb marked by Sampuran Singh. In his cross-examination he admitted that no money was paid in is presence. There was no oilier person with Jasbir Gir. Sukhminder Singh was examined as DW3. He stated that he is a witness of agreement of lease (Ex. D-1). 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 cross-examination 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. D-3. 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. D-4) 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 lakh 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. p-7, 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. D-5 and Ex. D-6) 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 arc 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 haw 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.