RAMJIT Vs. PARASADI

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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: