CHBAJU Vs. SUGAN CHAND

JUDGEMENT

(1.) THE circumstances that give rise to this appeal may briefly be stated thus - THE respondents applied for issue of a notice for payment of arrears of rent under sec. 79 of the Jaipur Tenancy Act (which now stands repealed by the Rajasthan Tenancy Act of 1955) against the appellant in respect of the land in dispute in the court of the S. D. O. , Kotputli. THE appellant objected to the contents of the notice and thereafter the application was deemed to be a suit for arrears of rent. Issues were framed in accordance With the pleadings of the parties and one of the issues was as to whether the kabuliyat on which the respondent based his suit was inadmissible in evidence for want of registration. THE trial court relying on a decision of the Board in Triloca vs. Nathu (case No. 21/jaipur of Svt. 2009, decided on 10. 9. 53) held that the kabuliyat being not executed by both the parties did not amount to a lease and as such was not compulsory registrable. THE first appellate court upheld the decision and hence this second appeal by the defendant.

(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. Strictly speaking, it is unnecessary for the purposes of the present appeal to determine as to whether a kabuliyat is compulsory registrable or not under sec. 17 (I) (d) of the Indian Registration Act. To ascertain the nature of the document alleged to be the kabuliyat, we have to examine the allegations in the plaint. The opening paragraphs of the plaint make it perfectly clear that the contract of tenancy in respect of the land in dispute was entered into verbally and that possession of the appellant over the holding originated according to the terms of that contract. After the completion of the contract the appellant made some entry in the account book of the respondent, though on that very date, giving out details as regards the amount of the rent to be paid in respect of the tenancy and the period for which it was to be valid. Under these circumstances, this document is neither a lease nor an agreement to lease, but a mere admission on the part of the lessee of the holding let to him and the amount of rent. For an authority on this proposition, reference may be made to page 9 of the Indian Registration Act by D. F. Mulla, V Edition (1950 ). "where after lands are let under a verbal agreement and the lessee enters into possession under such agreement an entry is made in the lessor's book and signed by the lessee showing the extent of the holding and the amount of rent, the entry is neither a lease nor an agreement to lease, but a mere admission on the part of the lessee of the area let to him and the amount of rent. '' If on the other hand, it had been alleged by the respondents that possession was taken under the writing then the position would have been entirely different and the writing may have amounted to a lease within the terms of sec. 2 (7) of the Registration Act. In the present case as pointed out, the contract of tenancy was made verbally and the origin of possession 3s also traced to that contract. The subsequent execution of the document in the bahi though called a kabuliyat does not in law amount to kabuliyat and as such the question of its registration does not arise.