PRAHALLAD THAPPA Vs. MD. YUSUF KHAN

JUDGEMENT

(1.) THE Defendant is the Appellant who has lost in both the courts below. The Plaintiff's case is that the disputed land was mortgaged with the Defendant under an unregistered document Ext. A dated 26 -8 -1952 executed by the Plaintiff in favour of the Defendant. The Plaintiff took a loan of Rs. 100/ - and for repayment of the loan he gave the land for two years to be cultivated by the Defendant and out of the usufruct for two years to get the loan discharged. There was a proceeding under Section 145 Code of Criminal Procedure between the parties in which the Defendant succeeded on 21 -8 -1957. The Defendant took the plea that he was a non -evictable tenant under the Orissa Tenants' Relief Act. The suit is therefore for declaration of title and recovery of possession.

(2.) THE Defendant's case is that Ext. A is not a mortgage but a lease and he is not evictable under Section 3 of the Orissa, Tenants Relief Act.

(3.) IT is not disputed before me and rightly that Ext. A is a lease and not a mortgage. It is the admitted case of both parties that Rs. 100/ - taken under Ext. A was paid up from the usufruct of the disputed land for the two years under lease (1953 -54 and 1954 -55). Though Ext. A is not admissible in evidence being unregistered it is certainly admissible for collateral purpose under Section 49 of the Registration Act. But that apart by the acceptance of rent by the Plaintiff for the two years towards discharge of the advance the tenancy is established. The learned Subordinate Judge fell into confusion in holding that there can be no tenancy proved aliunde when an unregistered document is in admissible due to want of registration.