KUNDA Vs. KUMBHA RAM

JUDGEMENT

(1.) THIS second appeal of defendant Kunda arises from the appellate judgment and decree of the Senior Civil Judge of Ganganagar, dated August 14, 1959 allowing the plaintiff's appeal and decreeing his suit for possession and injunction. I

(2.) THE dispute relates to a house situated in Kila No. 77 of village Kharsaj-war, tehsil Hanumangarh, of Ganganagar district. Plaintiff Kumbha Ram claimed that the bouse belonged to Moti and that he purchased it from his son Gopal under sale deed Ex. 1 dated July 1, 1931 for Rs. 100/- and that he continued to be in possession of the property since then. According to the plaintiff, the defendant dispossessed him some 2-1/2 years before the institution of the suit. THE plaintiff made an application to the Gram Panchayat of Sadul Shahar to seek his redress, but the Panchayat made an order on Sept. , 12, 1957 directing him to seek his remedy in a civil court of competent jurisdiction. He thereupon filed the present suit on October 5, 1957, for possession. THE defendant denied the alleged purchase of the house by the plaintiff. He pleaded that it was an open piece of land which was in his possession for a period of about 15 years and that his possession was lawful. Later, the defendant added the plea that sale deed Ex. 1 could not form the basis of the plaintiff's title because it had not been registered according to the law which was then in force in the former Bikaner State. Issues were framed on all these points of controversy. THE learned Munsiff of Hanumangarh held that even though the plaintiff had paid the penalty of Rs. 25/- in respect of the unregistered sale deed Ex. 1 under the provisions of the Bikaner State law, that did not make the document admissible in evidence because of the provisions of sec. 7 read with sec. 37 of the Bikaner State Registration Act, 1916. According to sec. 7 of that Act, the sale deed in question was compulsory registrable, while sec. 37 thereof provided that documents which were required to be registered by sec. 7 shall not affect any immovable property comprised therein and that no suit shall be entertained by any court on the basis thereof, unless such documents had been duly registered. For this reason, the learned Munsiff held that document Ex. 1 was not admissible in evidence and that its secondary evidence could also not be led by the plaintiff. He held that even though the plaintiff had succeeded in proving that he was in possession from 1931 onwards and that the defendant took over possession some 2-1/3 years ago, the plaintiff was not entitled to succeed in his claim for possession. Accordingly, the learned Munsiff dismissed the suit on March 18, 1959. On appeal, the learned Senior Civil Judge held that the document was admissible as evidence of a collateral nature, and decreed the suit by his impugned judgment. It is in these circumstances that this second appeal has arisen.