HANSRAJ Vs. PYARCHAND

JUDGEMENT

(1.) THIS is a second appeal by the defendant Hansraj and others against the judgment of the District Judge, Pratapgarh, dated the 7th June, 1954, in a suit for possession of certain agricultural land.

(2.) THE material facts, so far as they are relevant for the purposes of the present appeal, are briefly these. THEre is a well named Bhanwaria in village Sowania. Attached to this well are two fields one measuring 5 bighas and the other measuring 4 bighas. THEre was also some parat land appurtenant to it but we are not concerned with that so far as this appeal is concerned. THE plaintiff Pyarchand's case was that the aforesaid land measuring 9 bighas was the muafi land of one Chatubhuj, that Chaturbhuj gave a bapi Patta of that land to his son-in-law Khuman for a sum of Rs. 1001/- by a document dated Sawan Vadi 5, Svt. 2001 (corresponding to the 7th July, 1944) (Ex. P-l). THEreafter Khuman sold his khadam (i.e., tenancy) rights with respect to this land to the plaintiff Pyarchand and Badrilal Brahmin for Rs. 1,125/- by a registered deed dated Svt. 2003, Baisakh Sudi 9 (corresponding to 25th April, 1946) (Ex. P-4) and made over possession of the same to them. Subsequently Badrilal transferred his rights to Dudilal and the latter to the plaintiff Payarchand, and thus the plaintiff acquired khadam rights in respect of the entire 9 bighas of land for himself. THE plaintiff's case further is that the defendants managed to purchase proprietary as well as tenancy rights in respect of the disputed land, measuring 9 bighas some time in the month of Kati of Svt. 2003 (corresponding to October, 1956). This naturally gave rise to a dispute between the parties because while plaintiff was in actual possession of the entire 9 bighas of land the defendants had also made a bid to obtain proprietary as well as tenancy rights in respect of the same land from Mst. Bhuri widow of Shankerlal who was a brother of Chaturbhuj. Consequently, it is common ground between the parties, that an agreement was arrived at between them on Svt 2003, Kali Sudi 2, (corresponding to 26th October, 1946) in which it was agreed, among other tilings, that as the plaintiff was in possession of the khudam lights in respect of the 9 bighas of land attaching to the well bhanwaria, and as the defendant had purchased the entire land including the proprietary rights from Shankerlal's widow, the defendants would forego their hasil bhog in respect of the field, measuring 4 bighas to be left in the possession of the plaintiff, and in exchange the plaintiff would give up his right with respect to the field measuring five bighas, to be given over to the defendants would not lay any claim whatsoever to hasil bhog from the plaintiff in respect of the field left with him. This agreement, Ex. P-2, was executed by the defendants in favour of the plaintiff and a corresponding agreement Ex. D-1 which is a much briefer one was executed by the plaintiff in favour of the defendants on the same day; but in order to appreciate the arrangement which had been arrived at between the parties it is obvious that the two have to be read together. On the 15th November, 1949, the plaintiff instituted the present suit in the court of the Munsif Chittorgarh, and his contention was that the acquisition of the hasil bhog rights by the defendants in respect of the muafi land was unlawful and void being contrary to the muafi rules of the Mewar State and the agreement concluded between the parties (by means of Exs. P-2 and D-l) by which the defendants granted a remission of the hasil bhog to the plaintiff in respect of the 4 bighas of land to be left in his possession and the transfer of 5 bighas remaining land to the defendants in lieu of the remission of the hasil bhog already mentioned was also unlawful and void. THE plaintiff, therefore, prayed for recovery of possession of 5 bighas of land, the possession whereof had been given by him to the defendants by virtue of the aforesaid unlawful agreement.

(3.) AN argument was raised before me that Ex. P-l the bapi Patta granted by Chaturbhuj to Khuman had not been registered and, therefore, it was inadmissible in evidence and is ineffective to pass any rights to Khuman, and it is further argued that if Khuman had no rights that he could have effectively passed on, then the plaintiff could not have acquired any right from Khuman whatever. I have carefully examined this contention and am of opinion that it is without any substance. Learned counsel for the appellant placed his reliance on sec. 5 of the Mewar Registration Act. Before I address myself to the interpretation of this section, let us look at Ex. P-l which is the document executed by Chaturbhuj in favour of Khuman. It appears from a perusal of Ex. P-l that Chaturbhuj had taken a sum of Rs. 1,001/- from Khuman and in consideration thereof gave his bapi rights to the latter permanently. It was further mentioned in the document that Chaturbhuj would thereafter be entitled to his hasil bhog only and that Khuman would give it according to the village custom. This document, to my mind, was a permanent lease granted by Chaturbhuj to Khuman in lieu of a certain premium which had already been charged and a certain amount of rent which was to be charged from time to time. Now, such a document does not, in my opinion, fall within clause (1) of sec. 5 (A) of the Mewar Registration Act but falls under sub-sec. (B). What Chaturbhuj was doing was not to sell his entire rights in the property and this is the type of transaction which seems to me to be covered by sub-clause (1) of sec. 5 (A), before a document would be compulsory registrable thereunder. As he was merely transferring his right of cultivation in this case I am of opinion that the document in question was not compulsory registrable. I am fortified in this view by sub-sec. (2) of sec. 5 which provides that certain documents which relate to transfer of rights in relation to immovable property, such as simple mortgages or "bhada chitis" or "thekas', are merely optionally registrable and not compulsory so. I, therefore, overrule this objection.