SUKHLAL Vs. BISESAR

JUDGEMENT

(1.) THERE are two points for decision in this appeal, the first being whether the plaintiff-respondent's claim to possession of his deceased father's occupancy field is barred by time under Article 1, Schedule 2 to the Central Provinces. Tenancy Act, 1920, and the second, whether the defendant-appellants are entitled to use the unregistered mortgage deed, executed in their favour by the plaintiff-respondent's father, to prove the amount of the consideration paid by them.

(2.) AS regards the plea of limitation, the decision of Baker, J.C. in Mt. Kasturi v. Baliram A.I.R. 1924 Nagpur 222 has been referred to for the proposition that where an intended conveyance is void from the commencement, the possession taken on the strength of it is adverse; but that case is distinguished from the present as it dealt with an invalid gift, while here it is an usufructuary mortgage that is in question. It has also been argued that at least the appellants' possession became adverse on 21st August 1921, 9 years after the date of the unregistered deed, because that deed gave them possession for 9 years only. I have, however, no hesitation in holding that the deed being unregistered is not admissible in evidence in this connexion. In Narayan Bisnoi v. Jaswant Singh [1905] 1 N.L.R. 147, it has been held that an unregistered document cannot be used to prove the quality of a person's possession; and it seems to me to follow that, if the deed in this case cannot be used to prove the appellants' possession as mortgagees, it cannot be used to prove that they ceased to hold possession in that capacity on a particular date. But it has been said that the respondent's admission of facts in his plaint is sufficient to establish the case for limitation. This admission is said to be contained in paras. 3 and 4 of the plaint. What those paragraphs say is that after the plaintiff's father's death about 7 years previously, that is, about the middle of the year 1919, the plaintiff came to Borsi to obtain possession of his father's fields, that he found the defendant-appellants in possession and learnt from them that they had been given possession for 9 years, in lieu of interest on a debt of Rs. 200 owed to them by the plaintiff's father and that, the plaintiff accepted this position and left them in possession. Para. 6 of the plaint states that in 1926 the plaintiff again asked the defendants for possession as the period for which they had been given possession had then terminated, and they refused. The suit was brought on 29th July 1926, and clearly the statements made in the plaint do not show adverse possession before that year and, therefore, do not establish the appellants plea of limitation.

(3.) IN the ruling already referred to,. Narayan Bisnoi v. Jaswant Singh [1905] 1 N.L.R. 147. it was laid down that an unregistered instrument, though compulsorily Remittable, is admissible to prove a collateral fact but that to be collateral the fact must be independent of or divisible from the purpose to effect which the law requires registration, and the same has been laid down in Kalicharan v. Lal Indar Singh (1919) 15 N.L.R. 31. Applying this general principle, I find it impossible to separate the consideration for the mortgage from the purpose to effect which registration is required, that is from the mortgage transaction. It seems to me, moreover, particularly clear in this case that the defendants are seeking to use the unregistered document as evidence of a transaction affecting the property covered by it; for by it they seek to establish the amount they are entitled to as compensation for relinquishing possession of that property. I, therefore, agree with the lower appellate Court that the unregistered mortgage deed cannot be admitted to prove the consideration and the amount adjudged by the trial Court to be payable by the plaintiff-respondent will foe left unaltered. The result is that the appeal fails and is dismissed with costs.