INDER LAL Vs. ABDUL SALAM

JUDGEMENT

(1.) This is a plaintiff's second appeal in a suit for injunction dismissed by both the lower courts. The controversy now left to be determined in this second appeal relates to a ravish existing in-front of the house of the defendant on the first floor towards the north stretching from west to east as shown with letters "X-Y' in the site plan Ex. 1 annexed with the plaint. The plaintiff had come forward with a case in the plaint that the ravish was joint one of the parties. The plaintiffs entered the ravish through a door and passed and repassed through it by passage to the staircase facing east, which leads to the chowk. The alternative case set up by the plaintiffs was that if this ravish was not held jointly owned and possessed by the parties then the plaintiffs had acquired a right of casement to pass and re-pass through the ravish as they had acquired this right continuously without interruption for the last 30 years. The case of the contesting defendants -- respondent Abdul Razak was that the disputed ravish was exclu-sivly owned and possessed by him. He emphatically denied that the defendant ever used this ravish. The trial court had framed six issued, but I will only mention issues Nos. 1 and 5 which are necessary for the determination of this appeal: (Hindi matter omitted) The trial court found that the plaintiff Inder Lal, P. W. 1 was unable to state clearly the period since when he was using the ravish for passing and repassing. As regards the documents Ex. 4 and Ex. 5, the learned trial court held that the plaintiff was unable to state clearly in his statement how these two documents proved the ravish to be joint. Learned trial court also took into consideration the inspection note made by his predecessor in office, from which it was clear that in order to reach the disputed ravish, it was necessary to pass through an 'Ikdhara' belonging to the defendant. Learned trial court also found that the way leading to the joint ravish through eastern staircase was not the ordinary and easily approachable way, but there was other alternative and easy way to go to the properties of the plaintiffs. Learned trial court thus held that the ravish was not proved to be a joint property and decided issue No. 1 against the plaintiffs. As regards issue No. 5, learned trial court held that the plaintiff in his suit has shown his right on the ravish on the basis of ownership, but the plaintiff has not led any evidence to show that he was using the ravish under the ease-mentary right, by treating the ravish as belonging to the defendant. Learned trial court thus decided issue No. 5 also against the plaintiffs.

(2.) The plaintiffs aggrieved against the judgment and decree of the trial court filed an appeal, which came up for consideration before the Additional District' Judge, Jaipur City. Strong reliance was placed on documents Ex. 4 and Ex. 5 and it was contended that the aforesaid documents clearly and unambiguously proved that the ravish was a joint one since the time the Haweli was built and that the plaintiffs used to come through this ravish to their house by ascending the staircase which lies towards the left to the entrance of the haveli facing east. Reliance was also placed on documents Ex. A-1 and Ex. A-2. If was also contended that even the documents Ex. A-l and Ex. A-2 adduced by the defendant, supported the contention of the plaintiff that the ravish was also joint and was used as such. The learned Additional District Judge as regards Ex. 4 of March 1890 purporting to have been executed as mortgage by fine Sualal in favour of Khuda Bux and Hasan etc., forefathers of the defendants, observed that this document was unregistered and was not an original one. It was further observed that had this document been produced as original, it would have carried some weight and its recital would have been taken into consideration, even though the deed was unregistered, but as it was a copy of the original, no notice of it about the genuineness of the document could be taken under Section 90 of the Evidence Act Learned Additional District Judge, therefore, excluded this document from consideration. As regards Ex. 5 sale deed of 1917 alleged to have been executed by the forefathers of plaintiffs in favour of the forefathers of the defendants learned Additional District Judge observed that though this document was very old one and its contents could be presumed to be genuine, but the statements contained in this document amounted to an admission that the staircase was joint and as such could not be used by the plaintiffs in their favour because under Section 21 of the Evidence Act, an admission could not be proved by a party or by his representative in interest in his own favour. As regards Ex. A-1 dated March 1986, alleged to have been executed by one Bachu Lal S/o Kalu Ram in favour of Baksha s/o Panna grandson of Noor Khan and Hasan Chand s/o. Baksha fore fathers of the defendant, the learned Additional District Judge observed that though the staircase in the chowk facing east has been mentioned as joint in this document, but did not say as to who were jointly owning this staircase. According to the learned Additional District Judge, this document further stated that Kalu Ram has another portion in the house of the haweli towards south. There was also evidence that there were other cosharers in this house including plaintiffs. It could not, therefore, be said with certainty as to among whom this Sal mentioned in Ex.-A-1 was joint. It could be joint with other co-sharers but not with the plaintiffs. As regards the mention of the fact that the stair-case facing east was mentioned as exclusive property of the defendants in Ex, A/2, the learned Additional District Judge remarked that the defendant was not entitled to take advantage of this statement being an admission in his own favour. The learned Additional District Judge then considered the oral evidence and concurred with the finding of the trial court. Learned Additional District Judge thus held that taking over the entire position of this case, he was convinced that the trial court was perfectly correct in holding that the ravish on the north of the plaintiff's house in the first floor is not proved as joint of the plaintiffs and the defendant.

(3.) It was strenuously contended by Mr. Bhandari, learned counsel for the plaintiffs-appellants that the learned lower court committed an apparent error of law in ignoring Exs. 4 and 5. It was contended that Ex. 4 was a mortgage deed of March, 1890 executed by one Sualal in favour of Khuda Bux and Hasan etc., who were forefathers of the defendants. In this document, it was clearly stated that staircase, latrine, chowk and disputed ravish were joint Learned Additional District Judge committed a serious error in observing that Ex. 4 placed on record was a copy of the original, while in fact, it was an original one. In the year 1890, there was no such law in erstwhile Jaipur State that such document was inadmissible in evidence for being unregistered. This document was more than 30 years old and a presumption about its genuineness should have been drawn under Section 90 of the Evidence Act. Learned Additional District Judge had himself observed that had this document been produced in original, it would have carried some weight and its recital could have been taken into consideration. Reliance is placed on an unreported decision of this court in Ram Pal v. Dwarka Das (S. B. Civil Revision No. 307/5) decided on 24th April, 1952. In the aforesaid case, the question was, whether the mortgage deed was inadmissible in evidence for want of registration. Sharma, J.. while dealing with the old Hidayats published in accordance with the resolutions of the council of the Jaipur State observed that though the document being in the nature of mortgage deed, requires registration, but there was no provision in the Stamp Act or Resolutions that if the compulsorily registrable document is not registered it would not be admissible in evidence. Only provision was regarding realisation of the prescribed penalty and at the most the prescribed penalty could be recovered, but it could not be said that the document was altogether inadmissible. The argument that Section 49 of the Jaipur Registration Act was applicable, was negatived on the ground that it applied only to the documents executed after said Registration Act came into force. The Jaipur Registration Act came into force on 30th October, 1945 when it was first published in the Jaipur Gazette. The document in that case was executed on 24th June, 1945 and as such the provisions of the Jaipur Registration Act did not govern the case. It was thus contended that Ex. 4 in the present case was of the year 1890 and there was no question of holding such document as inadmissible. Another argument in this regard by Mr. Bhandari was that in any case the document Ex. 4 could be taken into consideration for collateral purpose to show the admission that the ravish in question was a joint one. Reliance is placed on Chhagan Lal Sobharam v. Madan Lal Shobharam (1961 MP LJ 762) in which it was observed as under:-- "Under Section 49, Registration Act, although a document required by law to be registered is not registered, it cannot be allowed to affect an immovable property comprised therein nor can it be received in evidence of any transaction affecting such property. Yet such document can be admitted to prove an admission of a party with regard to the character of the property, i.e. whether it is joint or otherwise".