HARI WAMAN RAO Vs. PAPPULA NARSIMULU

JUDGEMENT

(1.) This is a revision by the plaintiffs against the order dated 23-12-1975 of the Additional District Judge, Adilabad, refusing to receive a document in evidence filed by the plaintiffs during the course of examination of a witness. The plaintiffs-petitioners filed the suit for recovery of possession on the basis of title. It is alleged that late Venkata Rao borrowed a sum of Rs. 1,000 from the defendant in the month of February, 1957 and that the suit property was put in the defendants possession by way of usufructuary mortgage for 14 years with a stipulation for appropriating the usufruct towards the debt borrowed by late Venkata Rao. A mortgage bond was also executed to that effect. The period of 14 years expired in the month of January, 1971. Since then the defendant is in wrongful possession and did not deliver possession to the plaintiffs in spite of oral demands and a lawyers Notice, D/- 10-1-1972. The defendant in his written statement denied the debt alleged to have been borrowed by late Venkata Rao, the predecessor-in-title of the suit land. It is also alleged that late Venkata Rao agreed to sell the property to the defendant in the year 1955 or so. Since 1955 the defendant is in possession of the property. Thus he perfected his title to the property by adverse possession. The story of execution of the mortgage bond is concocted.

(2.) On behalf of the plaintiffs P. W. 1 was examined on 22-12-1975. At that time the mortgage bond executed by late Venkata Rao was sought to be exhibited. But the counsel for the defendant objected to its reception in evidence on the ground that it is an unregistered one. It was contended by the plaintiffs that the document was being produced for the limited purpose of showing the nature of possession of the suit lands by the defendant.

(3.) In the lower Court, the learned counsel for the plaintiffs relied on two decisions, viz., Amina Bi v. Khamrunnisa, AIR 1974 Mad 54 and Kolathoor Variath v. P. C. Kumhahammad Haji, AIR 1974 SC 689. It was held in Ameena Bees case that the document was admissible to show that Fateema Bee was the landlady and the tenants who executed the rent deeds were the tenants holding under her. The lower Court held that this decision is not applicable. Similarly relying on the decision in Kolathoor Variath v. P. C. Kumhahammad Haji (AIR 1974 SC 689) (supra) the lower Court held that as the very mortgage is not admitted, the document is not admissible in evidence. It may be noted that the mortgage alleged in the decision of the Supreme Court was oral. What the Supreme Court held was that the plaintiff could not regain possession on the basis of an oral mortgage as it could not be provided (proved?) in the Court of law for want of registration, but it was open to recover possession on the strength of his title. On that analogy, the lower Court held that the usufructuary mortgage deed now filed could not be admissible in evidence for want of registration. The next decision cited was Lachhmi Narain v. Kalyan, AIR 1960 Raj 1 (SUBSTANTIAL) wherein it was held: