Tikait Bishambhar Narain Singh and Others vs Ajodhya Ram

Meredith, J.—This is a defendants'' second appeal. The suit was for declaration of title and recovery of possession of cadastral survey plots 1786 and 1884 of village Serampur. The plaintiff''s case was that he took settlement of these plots from the then landlord by two unregistered hukumnamas in the year 1933. Subsequently he entered into possession, and rent was accepted from him by the Serampur estate. The estate was sold up, and came under another proprietor. Thereafter, on 19th July 1942, the son of the previous proprietor dispossessed him. He brought a criminal case, but was referred to the civil Court.

The defence was that the land had been previously settled by the proprietor with his wife, who remained all along in possession, and the plaintiff''s case of settlement was false.

The hukumnamas were not taken into evidence as they were unregistered, but both the Courts below have held that the plaintiff''s tenancy had been established by proof of his possession, payment of rent, and obtaining receipts from both the proprietors.

Only one point has been taken in second appeal, namely, that the unregistered hukumnamas being inadmissible the existence of the tenancy could not be proved by any other evidence. Reliance is placed on the case Ramautar Singh v. Juthi Tatma (37) 18 P.L.T. 1012. In that case, however, there is nothing to show that the lease in question was for agricultural purposes where a tenancy can be created orally without any written lease. The decision purports to follow (Maharani) Janki Kuer Vs. Birj Bhikhan Ojha and Others, a portion of which decision is quoted. What was held in that decision was not that no other evidence to prove the existence of a tenancy could be accepted but merely that

If the lease or grant is in the form of a document, then the only evidence admissible in proof of the terms of the document is the document itself, and, unless it is registered, even the document itself cannot be admitted in evidence as proof of any transaction affecting the property.

In that case their Lordships expressly stated:

If the document is not registered it cannot u/s 49 be received in evidence of the lease and in such a case Section 91, Evidence Act, 1872, debars other evidence of the lease being given. But the document may be admissible for a collateral purpose e.g., to show the nature of the defendant''s possession.

They also observed:

Where, a written document is defective as a valid and finally concluded agreement such defect may be supplied by the subsequent actings and conduct of the parties, as where subsequent acts of the parties themselves disclose a state of affairs consistent only with the existence of an agreement mutually recognized and acted upon as if the instrument were binding.

It is, in fact, well settled in a series of cases going back to Amir Ali v. Yakub Ali Khan, AIR 1015 Cal. 39 that a tenancy can be proved without proving the lease, if there be any. I need only cite the decision of Dhavle J. in Ram Nandan Prasad and Another Vs. Tilakdhari Lal, wherein his Lordship held that a tenancy right under the Bengal Tenancy Act can be proved without proving the lease, if there be one, which is inadmissible for want of registration, and, secondly, the decision of Fazl Ali J. (as he then was) and Chatterji J. in Shyam Kreshto Shaw and Others Vs. Ganesh Kahar and Others, a case where a trespasser contended that the tenant had acquired no valid right of tenancy in a certain plot, inasmuch as he got settlement by virtue of a parcha which was not registered. It was held that the document was admissible in evidence for a collateral purpose to explain the nature and character of possession, and, secondly, that the unregistered document followed by possession had perfected the tenant''s title. It is open to a landlord to create a tenancy by giving possession and accepting rent, and clearly, therefore, such a tenancy can be proved by evidence other than the production of the hukumnama.

There is no substance in this appeal, and it must accordingly be dismissed with costs.

Ray, J.

I agree.