G BALAKISHTIAH Vs. B RANGA REDDY

JUDGEMENT

(1.) The plaintiff-appellant herein filed a suit for possession and mesne profits against the defendant-respondent alleging that on 6th Meher 1343 F, the owners of the suit land transferred the same in his favour through a registered sale deed and he has been in possession by leasing it on kaul to Ismail Sherif and alter his death to Ahmad Sherif and thereafter to his two sons Khaja Sherif and Maqdoom Sherif, who agreed orally to continue us lessees on the basis of the previous agreement. He further avers that later on the lessees in collusion with the defendant dispossessed him. The defendant (respondent) has denied all the allegations contained in the plaint, claimed ownership of the land and stated that he and his ancestors had leased out the land in dispute to Gul Farosh (flower vendors) and according to the custom prevailing, if the owner of the land desired to evict the Gul Farosh, he had to pay money towards the right of ownership and possession of the lease and in pursuance of this practice, he purchased the right of ownership and possession of the Phool Bagh from his Kauldars Khaja Sherif and Makdoom Sherif through a registered sale deed 18-3-51F. In the rejoinder, the appellant admitted that the flower garden had a permanent characteristic and alleged that his ancestors had erected flower garden on the disputed land which was taken on lease by the Gul Farosh from him and his father. In all 8 issues were framed. Evidence was led by the parties. On the evidence produced, the lower Court decreed the suit of the plaintiff for possession and mesne profits at the rate of Rs. 350.00 per year till the delivery of possession holding that the title and possession of the appellant was proved. He also held that the defendant had no right and title. Aggrieved by the judgment and decree of the trial Court, the respondent herein went in appeal. The appellate Court, retaining the case on its file, remanded the case to the trial Court for evidence of the parties. Alter remand, the trial court on the evidence produced expressed the opinion that the evidence on record was not sufficient to give a decree for mesne profits, but that the plaintiff was entitled to a decree: for possession. When the matter came up before the learned Judge again, he dismissed the entire claim of the plaintiff. Hence this appeal.

(2.) It is contended on behalf of the appellant that the lower appellate Court has erred in holding that unregistered lease deeds were not admissible in evidence and that the other evidence on record was not sufficient to establish title and possession of the plaintiff.

(3.) The sole question that has to be determined in this appeal is whether the appellant has any right and title to the suit property and whether he was in possession and has been dispossessed by the respondent. In order to prove title and possession, the appellant relies on the registered sale deed, two lease deeds, pauti bahi the revenue receipts from 1337 F. to 1355 F. and the oral testimony of five witnesses. So far as the pattedari of the plaintiff is concerned, the defendant has denied that he is a pattedar. The appellant has filed the pauti bahi, murasala of the Tahsil and the mutation record. All these go to prove that the patta of the suit land stands in the name of the plaintiff. It is also evident that previous to this, the patta stood in the name of the plaintiffs father. As against this there is no evidence on behalf of the respondent. The next question is who is the owner of the suit property. The plaintiffs case is that he and his ancestors had been in possession of the suit land for over 50 years and admitting their possession, the owners of the land transferred the same in his possession. The vendor Shankeriah has been examined and he States that he transferred the suit property in favour of the plaintiff. As against this, the case of the respondent is that he was the owner and he had leased out the suit land to Ahmed Sherif and according to the prevailing custom. he purchased the same from him. There is absolutely no evidence in the case to show that the respondent was originally the owner of the suit land. Now, the only case of his that remains is the purchase by him from Ahmed Sherif. This Ahmed Sherif, according to the plaintiff was his kauldar. The respondent also states that he (Ahmed Sherif) was his kauldar. Ahmed Sherif is dead. His sons Khaja Sherif and Maqdoom Sherif are alive. Out of these, Khaja Sherif has been examined on behalf of the appellant. He admits that he had taken the suit land on kaul from the appellant and as regards the defendants claim that he sold the property to him, he says that was done under duress and undue influence. It is therefore clear from the statement of Khaja Sherif that he was a kauldar of the appellant. A kauldar cannot transfer any bettor right to any person than what he himself has. The plaintiff-appellant in order to prove that Ahmed Sherif was his kauldar, apart from the oral evidence, relies on two lease deeds, Exs. 2 and 20 Exhibit 2 is a kaulnama executed by Ahmed Sherif on 4th Dai 1350 F. For a period ot 5 years. Exhibit 20 is another kaul dated 26th Khurdad 1336F, by Sherif Sab son of Ismail Sab. It may be noted here that Ahmed Sherif is the son of Ismail Sab and Khaja Sherif and Man-doom Sherif are the sons of Ahmed Sherif. Yousuf Ali, P. W. 2 and Khaja Mia, P. W. 5 have spoken to the fact of these kubuliats. The contention of the learned counsel for the appellant is that though these kubuliats are unregistered, still they are admissible to prove the nature of possession and also the admission by Ahmed Sherif that the plaintiff is the owner, whereas the contention of the other side is that these kubuliats being unregistered are inadmissible in evidence and they cannot be relied upon even to prove the nature of possession or admission. In this connection, the learned counsel placed his reliance on K. Subbayya v. Mudduletiah, 17 Mad LJ 469. We do not find sufficient force in the contention of the learned counsel for the respondent. There is sufficient authority for the proposition that a document which is unregistered is admissible for collateral purposes. In the instant case, the appellant relies on this document for the purpose of proving the admission of Ahmed Sherif contained therein. There is also sufficient authority for the proposition that an unregistered document can be admitted in evidence for the purpose of proving the admission contained therein. We may in this connection refer to a few cases: