RAM KISHORE Vs. AMBIKA PRASAD

JUDGEMENT

(1.) THIS is a appeal from the concurrent Courts below decreeing the landlords suit for recovery of arrears of rent. The plaintiff-respondent Ambika Prasad alleged that the defendants father took the house in question from him on rent at the rate of Rs. 10 per month and executed a kirayanama for one year, and that after their fathers death the defendants were in possession as tenants but had failed to pay the rent. They alleged that the original rent was enhanced to Rs. 12-8-0 after the house was laid with electricity. They claimed Rs. 75 (sic) as arrears of rent from 19-2-1953 to 18-12-1957. The defendants resisted the suit and denied that the plaintiff was the owner of the house or that his father executed any kirayanama. He alleged that his father had been occupying the house for 20 years and perfected his title by adverse possession. The trial Court held that the plaintiff was not the owner of the house but the ownership was not material to the question whether a relationship of landlord and tenant existed between the parties. It held that this relationship did exist and the plaintiff was the landlord of the defendant. It passed a decree for three years rent, holding the rest of the claim to be time-barred. On appeal by the defendant the learned Civil Judge did not agree with the finding of the trial Court that the plaintiff was not the owner of the house but left this question undecided on the ground that it was not material. It held that the plaintiff had established the tenancy and confirmed the decree of the trial Court. The defendant has come to this Court in second appeal.

(2.) MR . Krishna Chandra Saxena, brief holder of Mr. B.C. Saxena, who argued the case with considerable tenacity, contended that the finding of the lower appellate Court that the plaintiff had proved the contract of tenancy is erroneous. Learned counsel pointed out that the kirayanama on which the plaintiff relied for his suit for recovery of rent is an unregistered document and, therefore, created no valid lease. He further contended that this document was inadmissible in evidence for any purpose whatsoever. On the other hand, Mr. Swami Dayal for the respondent argued that the kirayanama is admissible for collateral purposes. I have heard learned counsel for both parties at considerable length. In my opinion, the document is admissible for the collateral purpose of proving the nature of the defendants possession and the amount of rent. It is important to note that this document was executed in 1948 and purported to grant a lease for one year only. Therefore even if the lease had been valid, its period would have come to an end in the year 1947. The defendant continued in possession even after this, and the plaintiffs claim for rent is for the period between 1953 and 1957. It is manifest that his suit is not based on the lease which expired after a year but on the subsequent conduct of the parties. The vital question in issue is the nature of the possession of the defendant during this period : is he in occupation as a tenant or licensee or a trespasser in adverse possession ? To ascertain this fact the kirayanama, though inadmissible as a lease was admissible as evidence of the nature of the defendants possession during the period for which the rent is claimed. I am supported in this view by a decision of this Court in Fateh Chand v. Mst. Radha Rani, 1956 All LJ 625, in which it was held that an unregistered lease is admissible for collateral purposes as provided in S. 49 of the Registration Act, As observed by Gurtu, J. in that case, "What a collateral purpose is cannot be precisely defined. It must vary with the circumstances of each case. Leases which were not registered but were required to be registered and were, therefore, inadmissible for a purpose other than a collateral one have been looked at in reported cases in order to ascertain the nature of the possession of the tenant, the data from which the tenancy began and for determining the period of tenancy, and for finding out what the rent reserved was". In the present case the kirayanama can be consulted for the nature of the defendants possession and, if it is held that he is in occupation as a tenant, for finding out the rent payable by him.

(3.) LASTLY learned counsel contended that the kirayanama is inadmissible even for collateral purposes because none of the attesting witnesses had been summoned to prove its execution. He pointed out that the plaintiff had produced a witness who was neither a party nor an attesting witness. Learned counsel relied on S. 68 of the Evidence Act for his argument. But that section is of no avail to him, as it applied only to documents which are required by law to be attested by witnesses, such as wills. But if a document is not required to be attested but the parties get it attested by witnesses, this superfluous act does not attract the provisions of S. 68. Learned counsel argued that the lower appellate Court should not have believed the witness Hazari Lal after it had rejected a part of his testimony as untrue. But the Court below committed no error of law in believing such a witness. The Supreme Court has held that the principle, falsus in uno falsus in omnibus does not apply in India. The question is not whether the lower Court should have believed such a witness but whether it could have believed him. The matter was within its discretion.