Ramjit vs Parasadi

P.K. Tare, J.—This appeal is by the Defendant against the decree, dated, 7-4-1959, passed by Shri J. N. Malla, Additional District Judge, Datia, in Civil Appeal No. 8 of 1958, reversing the decree, passed by Shri N. P. Saxena, Munsiff, Datia, in Civil Suit No. 61 of 1957, dated, 24-10-1958.

The Respondent, claiming to be an occupancy tenant of khasra Nos. 203, 209, and 247, sued for redemption of a mortgage, dated, 10-6-1955, said to have been executed by him in favour of the present Appellant for a consideration of Rs. 200. In the plaint the Respondent had specifically pleaded his title as an occupancy tenant of the fields.

The Appellant''s defence was that no mortgage had ever been executed and that he was in possession of the suit fields in his own right. It was further pleaded that there was a family custom that the property should be recorded in the name of the eldest member alone. The Appellant claimed to be in possession of the property in his own right, and not as a mortgagee. Moreover, it was contended that the alleged mortgage, dated, 10-6-1955, being unregistered, could not be operative as a mort-gage, and the unregistered deed was inadmissible in evidence, and in the absence of production of the original deed, no secondary evidence of the contents of the unregistered mortgage could be permitted.

The learned Judge of the trial Court upheld the Defendant''s pleas and dismissed the Plaintiff''s suit. However, the learned appellate Judge reversed that decree, holding that even if the mortgage deed be unregistered, the Plaintiff, having proved his title as an occupancy tenant, was entitled to succeed in his claim for possession, as it was clear that the Defendant was not in possession in his own right, but that possession had been delivered in pursuance of the unregistered mortgage deed, dated, 10-6-1955. Further, the learned appellate Judge held that although the deed was unregistered although compulsorily registrable, secondary evidence was admissible to prove the contents of the deed in order to determine the nature of possession under the proviso to Section 49 of the Registration Act. The learned appellate Judge, relied on the case of Ahmedkhan Jamatkhan v. Mohammad Khan AIR 1937 Nag 116, decided by Pollock J., wherein the learned Judge had made the following observations:

If the original document is lost or if the Defendant refuses to produce it after notice to do so, secondary evidence is admissible u/s 65, Evidence Act, and Section 91 of that Act would not appear to prohibit secondary evidence being given of the terms of a compulsorily registrable but unregistered document in such circumstances It is however not necessary to decide whether the Small Cause Court was correct in saying that oral evidence was inadmissible to prove the terms of the Patta.

The learned Counsel for the Appellant urged that the Plaintiff, not having based his claim on the basis of title, the learned appellate Judge acted illegally in decreeing his claim on that basis. It was pointed out that it had caused prejudice to the Defendant''s case, who had no opportunity to prove his lawful possession or the fact that he held the property in his own right as a member of the joint Hindu family.

In this connection, it is significant to note that in paragraph 1 of the plaint, the Respondent had pleaded his title as an occupancy tenant. The said allegation was denied by the Appellant. Consequently, the trial Judge framed a specific issue whether the Plaintiff was the occupancy tenant of the suit fields namely, khasra Nos. 203, 209 and 247. The parties led evidence on this point. The Appellant also led evidence to establish the family custom alleged by him. The plea of custom has been negatived by the learned appellate Judge on the ground that the Appellant failed to establish the same. It is, therefore, clear that the parties were fully aware of the issue whether the Plaintiff was an occupancy tenant on the basis of his exclusive title, which matter was put in issue and on which issue the parties were permitted to lead evidence. As such, there is no substance in the contention of the learned Counsel for the Appellant that the Appellant was prejudiced because of the fact that the first appellate Court decreed the Plaintiff''s claim for possession on the basis of title, as the mortgage deed being unregistered, no decree for redemption could be passed.

The learned Counsel for the Appellant further invited attention to the observations of their Lordships of the Supreme Court in Mst. Kirpal Kaur Vs. Bachan Singh and Others, . This is what their Lordships observed in the said rulings:

It is then said that the agreement of February 6, 1932 showed that since its date her possession was permissive. The High Court has held that the agreement was admissible to prove the nature of her possession. In Varada Pillai v. (sic) mal, LR 46 IA 285, it was held that a document which should have been registered but was not, was admissible to explain the nature of the possession of a person. What had happened there was that two widows who were in possession of a property in equal shares, presented a petition to the Collector on 10-10-1895 whereby after reciting that they had on 8-10-1895, given away the property as siridhan to one Duraisani, they prayed that orders might be passed for transferring the villages into her name. On this petition the property was registered in the name of Duraisani and she was put in possession and thereafter continued in pos-session till her death in 1911. The question was whether Duraisani had acquired title to the property by adverse possession. It was held that though the petition in the absence of registration could not be admitted to prove a gift, it might be referred to for showing that the subsequent possession of Duraisani was as a donee and owner of the land and not as trustee or manager for the two donors and therefore to show that the nature of such possession was adverse to them. We cannot agree that on the authority of Varadc Pillai''s case (supra) the agreement of 6-2-1932, can be admitted in evidence in the case in hand to show the nature of Harnam Kuar''s possession of the lands subsequent to its date. In Varada Pillai''s case (surra) Duraisani had got into possession only after the petition and claimed to retain possession only under the gift mentioned in it. The petition was therefore admissible in evidence to show the nature of her possession. In the present case Harnam Kuar had been in possession before the date of the document and to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to dertroy the nature of the previous possession and to convert what had started as adverse possession into a permissive possession and, therefore, to give effect to the agreement contained in it which admittedly cannot be done for want of registration. To admit it in evidence for the purpose sought would really amount to getting round the statutory bar imposed by Section 49 of the Registration Act.

Therefore, it would be seen that Harnam Kuar in that case was in prior possession adversely to the claimant. By a deed, which was compulsorily registrable, but which was not registered, the claimant wanted to change the nature of Harnam Kuar''s possession by showing that it was permissive possession. It was for that reason that their Lordships laid down that the proviso to Section 49 of the Registration Act could not be used in a manner so as to circumvent the statutory bar imposed by Section 49 of the Registration Act. It is significant to note that in that case Harnam Kuar had been in prior possession adversely to the claimant and not that possession was delivered in pursuance of the unregistered document. It was for that reason that Their Lordships of the Supreme Court distinguished the Privy Council case of Varada Pillai v. Jeevarathnammal, LR 46 IA 265. But, where there is delivery of possession in pursuance of an unregistered deed, which is compulsorily registrable, it is clear from the observations of their Lordships that the principle laid down by the Privy Council in Varada Pillai v. Jeevarathnammal (supra) would be applicable Therefore, I am of opinion that in the present case as the learned appellate Judge found it as a fact that the present Appellant could not trace out his possession earlier than two years, the same was referrable to the unregistered mortgage deed, dated, 10-6-1955. That conclusion, in my opinion, cannot be said to be erroneous. Consequently, the proviso to Section 49 of the Registration Act would be attracted in the present case in order to ascertain the. nature of the possession. There is no claim of any adverse possession by the Appellant. On the other hand, he claimed to be in possession in his own right as a member of the joint Hindu family, which he failed to establish. Therefore, the contents of the unregistered mortgage deed could be used by the Respondent under the proviso to Section 49 of the Registration Act. Therefore, I am of opinion that although Pollock J. might have stated the proposition rather in wide term in Ahmdkhan Jamatkhan v. Mohammad Khan (supra), the proviso to Section 49 of the Registration Act would certainly be attracted in the present case and for that limited purpose the Respondent could either demand production of the original unregistered mortgage deed and if it is not produced in spite of a notice, he could certainly lead secondary evidence of the contents of the document for the limited purpose permitted by the proviso to Section 49 of the Registration Act. To that extent, I am in agreement with the view of Pollock J.

As regards the question whether a decree for possession on the basis of title could be passed in spite of the fact that the Respondent had merely filed a suit for redemption, it is clear that a suit for redemption is equally a suit for possession of the property. In a mortgage, it is by way of a security for the payment. But that does not alter the essential nature of a mortgage suit, which is primarily for possession of the mortgage property. Therefore, for this reason, I am in agreement that the view of a Division Bench of the Allahabad High Court consisting of Sulaiman Ag C. J. and Bajpai J. in Halka Vs. Nannhon , where the learned Judges held that it was always open to the Court to decree a Plaintiff''s claim for possession on the basis of title, if the mortgage itself was unregistered. The mere fact that the document was invalid for want of registration, it could not preclude the mortgagor from proving his own title, and if that be established, the Court could always grant relief to the mortgagor upon proof of title. From this point of view, the learned appellate Judge cannot be said to have acted illegally in passing a decree on the basis of title. Further, the learned appellate Judge imposed a condition about the repayment of the principal amount of Rs. 200 as a condition precedent to the passing of a decree for possession on the basis of title. Of course, this cannot be said to be a decree for redemption as such. It would only be on the principles of equity, justice and good conscience that before the Respondent is granted possession, he should refund whatever benefit he got under an invalid contract on the principle analogous to Section 65 of the Contract Act.

As a result, this appeal fails and is dismissed with costs. Counsel''s, fee according to schedule or certificate, whichever be less. The costs of the Courts below shall be borne as directed by the firset appellate Court. Leave for filing a Letters Patent appeal is refused, as there is no substantial question of law involved in the present case.