HALKA Vs. NANNHON

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for posession. According to the plaint a mortgage had been made by the plaintiff's father in 1899 for a sum of Rs. 199 and the defendants predecessor was put in possession of the mortgaged property which consisted of occupancy holdings. The plaintiff offered to pay the amount due on the mortgage and sought recovery of possession. There were several defendants to the suit. Defendant 1 did not admit the title of the plaintiff or the existence of any mortgage at all. Other defendants admitted the plaintiff's title, but pleaded that the mortgage deed alleged by the plaintiff not having been registered the plaintiff could not claim any right under it and was not entitled to recover the property. Both the Courts below overruled the pleas raised by the defendants and decreed the claim on payment of the amount admitted by the plaintiff.

(2.) The lower appellate Court held that the mortgage deed being unregistered was admissible for the purpose of proving the nature of the defendants possession. On appeal to this High Court a learned Judge of this Court allowed the appeal and dismissed the plaintiff's suit. He came to the conclusion that in view of the provisions of Secs.17 and 49, Registration Act, the document in question was inadmissible in evidence for the purpose of proving any transaction and that under Section 91, Evidence Act, other evidence was also inadmissible for showing the nature of the transaction.

(3.) With the exception of the Pull Bench case of Bam Gopal V/s. Tulshi Bam which was not on all fours with the present case, the attention of the learned Judge was not drawn to some other cases of this High Court, Bartizan V/s. BhuJchal Bai [1918] 47 I.C. 852 and the single Judge of Maha Mangal Bai V/s. Kishun Kandu and the unreported decision in Section A. No. 1631 of 1927, decided on 29 April 1930, Srimati Badha Bai V/s. Debi Das.