DHURA Vs. MASRUDDIN

JUDGEMENT

(1.) This is a special appeal against the judgment of Shri Gajendra Singh Member Board of Revenue dated 5 -1.1967 passed in revision No. 51 (Chittorgarh) of 1964.

(2.) The facts of the case, in brief are, that the present respondent Shri Masruddin had brought a suit under section 186 and 187 of the Rajasthan Tenancy Act in the Court of Asstt. Collector Pratapgarh on 16 -7 -1957 alleging that the suit land was obtained by him for cultivation from the defendant Dhura, present appellant, under a written agreement dated 12 -7 -1951, but about 25 days before the filing of the suit the defendant forcibly dispossessed him. It was prayed that possession be given him and damages of Rs. 270 at fix times of the rent of Rs. 45 be allowed to him. The suit was contested by the defendant on the ground that he was khatedar of the suit land which was in his cultivatory possession for about 25 years and he was paying rent therefor. The learned Court held that the defendant was tenant of the suit land and the plaintiff was sub tenant since 1951 and that the defendant forcibly dispossessed him. Hence, the suit was decreed Aggrieved by this, an appeal was filed in the Court of Revenue Appellate Authority, Udaipur, which was dismissed on 30 -11 -1964. Against this a revision application was filed by the present appellant, Dhura, before the Board of Revenue which was rejected by the learned Member of the Board on 5 -1 -1957. It is against this judgment of 5 -1 -1967 that this special appeal has been filed. We have heard the learned counsel of the parties and have also perused the record. The learned Member held that the document Ex. P. 1 is not a lease deed since it was not executed by both the lessor and the lessee. It was further observed that it operated only as a Kabuliat and not as a lease and did not require registration or attestation. In view of this the contention of the counsel for the petitioner that this document was unregistered and tenancy of the respondent could not be proved, was held to be without any foundation. It may be mentioned at the outset that both the Courts below on the basis of proper appreciation of evidence, both oral and documentary as well as taking into consideration this Kabuliat Ex -P. 1 have cone to a definite finding of fact that the relationship between the parties were that of a tenant and sub -tenant and as such the ousted sub - tenant was entitled to reinstatement. The above finding has been assailed by the learned counsel for the appellant on the ground that Ex. P. 1 was the basic document to show the relationship between the parties as that of a tenant and sub tenant. As per provision of section 17 of the Registration Act, this document was required to be registered, and since it was not registered if was not admissible in evidence. Sub -clause 7 of Sec. 2 of the Indian Registration Act defined lease to include a counterpart, Kabuliat, an undertaking to cultivate or occupy, and an agreement to lease,. "Sec. 17 of the Act enumerates the document of which registration is compulsory. Section 17(1) Sub -clause (d) provides for compulsory registration of "leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent." Provided that the Provincial Government may, by order published in the official Gazette, exempt from the operation of this sub section any lease executed in any district, or part of a district, the terms granted by which do not exceed five year and the annual rent reserved by which do not exceed fifty rupees." In view of these provisions it was argued that the learned Member erroneously held the document as Kabuliat and further that it did not require any registration or attestation. It was prayed that while accepting the special appeal the suit by the respondent for reinstatement be rejected and the appellant be allowed to remain in possession.

(3.) The learned counsel for the respondent has argued that in respect of tenancies of agricultural land, a Kabuliat was not required to be registered and such a document was admissible in evidence even though it was not registered. He rnade a reference to sec. 117 of the Transfer of Property Act under which provisions of chapter V leases of immovable property are not applicable to leases for agricultural purposes except in so far as the State Govt. may by notification declare all or any of such provisions applicable in the case of all or any of such leases. 1950 Allahabad p. 661 was also cited where it was held that a Sarkhat (Kabuliat) executed by the lessee alone did not operate as a lease, but the deed was nevertheless, admissible in evidence for the purpose of determining the nature of possession, and that where it was for a period of more than one year it should be registered. Obviously this ruling does not help, because under section 17 of the Registration Act the document was required to be registered, and as per definition of lease given in the Act, a Kabuliat was included in the term lease and as such it was inadmissible in evidence, if it was not registered.