GUPHRAN ALI Vs. BISMILLA

JUDGEMENT

(1.) THIS second appeal has been filed against the order of the Revenue Appellate Authority, Kota, dated 28. 5. 63 confirming in appeal the judgment and decree of the Sub-Divisional Officer, Sawai Madhopur, dated 24. 8. 62, whereby the learned Sub-Divisional Officer had decreed the suit of the respondent for the redemption and delivery of possession of the suit land. The allegation of the respondent is that the suit land was in her khatedari and mat the same had been mortgaged with possession to the appellants by her husband. In Svt. year 1998, she needed some money whereupon an account was struck of the previous dues and after taking another sum of Rs. 20/-, she executed a mortgage deed for Rs. 85/- in favour of appellant, Guphran Ali. She prayed that the land be now redeemed and redelivered to her under Sec. 43 of the Rajasthan Tenancy Act 1955. The appellants denied the mortgage and claimed to have acquired Khatedari rights on the ground that they had been in possession of the land for a long time. The suit was decreed by the trial court whose judgment and decree was upheld by the first court of appeal as stated above. Hence this second appeal.

(2.) THE main ground of the attack of learned counsel for the appellants is that the judgments of the courts below are perverse. It is contended that before a decree or the redemption of the mortgage can be given, it is for the plaintiff to show that he mortgage subsists. It is averred that under the Jaipur Laws, then obtaining, the registration of a mortgage was compulsory and as the alleged mortgage was not registered, it could not create any interest and was in-admissible. It is also argued that as admitted by the plaintiff, the land was already in the possession of the appellants. Under these circumstances, the new agreement alleged to have been executed between the parties is not admissible. In support of this contention, reliance has been placed on Mst. Kirpal Kaur vs. Bachan Singh (AIR 1958 S. C, 199) it was held in that case that the agreement between the parties cannot be admitted in evidence to show the nature of the possession of one of the parties, subsequent to its date. THE party being in possession before the date of the document, to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into a permissive possession and, therefore, to give effect to the agreement contained in it which admittedly could not be done for want of registration, as this would amount to getting round the statutory bar imposed by Sec. 49 of the Registration Act. It is, further, argued that the lower courts have not determined the date of the mortgage and thus they have committed a grave error of law in so far as the question of limitation has not been examined.

(3.) IN the result), therefore, we have no hesitation in rejecting this appeal with costs. .