JAIPAL SINGH Vs. BHARAT NARAIN

JUDGEMENT

(1.) This appeal by the defendants arises out of a suit for declaration of title to, and recovery of possession of certain lands in village Islampur Begampur, 'touzi' No. 10034, which was formerly owned in equal shares by Mt. Bibi Hazra and one Jamil Ahmad. Bibi Hajra transferred her share to the plaintiffs on the 18th of December 1941 at a time when it was in 'Zarpeshgi thika' with defendant No. 1. The plaintiffs deposited the zarpeshgi money after the purchase and got 'khas' possession. Subsequently, on the 15th of January 1942, defendant No. 1 purchased the eight annas share of Jamil Ahmad. The suit was filed by the plaintiffs claiming the suit lands as 'bakasht'. With respect to the lands in Schedule 2, the claim is that they were purchased by Bibi Hajra and that the entire interest in them has now passed to the plaintiffs. As regards the lands in Schedule 3, the claim is that they were purchased jointly by Jamil Ahmad and Bibi Hajra, and the plaintiffs have a share of eight annas in them. The claim of the plaintiffs was contested by some of the defendants, who pleaded that they have acquired 'raiyati' rights in them under settlements made by the original proprietors. The defence has succeeded as regards a portion of the suit property. We are concerned only with the lands of 'khatas' Nos. 245, 257, 258, and 263 which, according to the defence were settled with Noonoo Singh appellant on the 22nd of June 1934 and of 'khatas' 278, 249 and 247 alleged to have been settled jointly with Hazari Singh deceased and Sital Dhanuk appellant, by Bibi Hajra and Jamil Ahmad on the 15th of June 1937. The sons of Haziri Singh are appellants. The defence story has not been accepted by the Courts below so far as these lands are concerned and to that extent the suit has succeeded.

(2.) The only point which arises in this case is whether the decision of the Courts below is affected by the exclusion from evidence of the unregistered 'hukumnamas' by which the settlements of these lands are said by the defence to have been made.

(3.) It is admitted that, under Clause (d) of Sub-section (1) of Section 17, Registration Act, these 'hukumnamas' were compulsorily registrable, but, it has been contended that non-registration merely prevents a party from going to Court as a plaintiff and seeking to establish his title on the unregistered document; it may, however, be used as a shield when the party is impleaded as a defendant. I see nothing in the provisions of Section 49, Registration Act, to support the contention. The section provides that such a document shall not (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power. There is no distinction drawn between the use of the document by way of a sword and its use as a shield.