BALDEO SINGH Vs. SHEIKH MUHAMMAD AKHTAR

JUDGEMENT

(1.) The plaintiffs are the appellants in this second appeal. They filed the suit for redemption of a mortgage bond dated 8 March 1913, which was executed by the father of defendant second party for Rs. 100 in favour of defendant first party. On 21 May 1932, the plaintiffs purchased the equity of redemption of these lands which were formerly bhaoli and were subsequently converted into nagdi. A sum of Rs. 100 was left in deposit with the plain, tiffs for redemption of the sudbharna bond. As the defendant first party refused to accept the money, under Section 83, T.P. Act, Rs. 100 was deposited in Court and a notice of the deposit was served on the defendant first party. There was an objection by the defendant first party alleging that the property had been sold to him by an unregistered sale deed dated 12 September 1914 by Bhairo, the original mortgagor, father of the defendant second party. His brother alleged that after the sale he had his name mutated in the landlord's sarishta and had been getting receipts on payment of the rent.

(2.) The plaintiffs case further was that the unregistered sale deed was not a genuine document, and even if it was executed by Bhairo, it could not bind the defendant second party or the plaintiffs, as the possession of defendant first party was wrongful when the suit was filed on 27 August 1932. The case of the defendant first party was that the plaintiffs document was not genuine, that after executing the sudbharna bond Bhairo sold the land to the defendant first party for Rs. 200 in September 1914, and that since his purchase the defendant had been in possession as purchaser and malik to the knowledge of Bhairo and got his name mutated in the landlord's sarishta. He further raised the question of limitation. Originally after the judgment of the trial Court there was an appeal before the lower Appellate Court and the case was remanded to the trial Court, which had not taken the unregistered sale deed in evidence, with the instruction that the sale deed should be taken into evidence and an opportunity should be given to the plaintiffs to adduce evidence in its rebuttal, to consider whether the receipts filed by the defendant, were genuine or forged, and whether having regard to the unregistered kabala defendant 1 had acquired title by adverse possession so as to non-suit the plaintiffs. After remand the trial Court took the unregistered sale deed into evidence and dismissed the suit of the plaintiffs On appeal the judgment of the trial Court has been upheld by the learned Subordinate-Judge.

(3.) Mr. Siva Narayan Bose, appearing on behalf of the appellants, urges, firstly, that the unregistered sale deed should not have been taken into evidence, and secondly, that a man who is in possession as a usufructuary mortgagee cannot prescribe as owner against the mortgagor. He incidentally also mentioned that the contents of the sale deed could not be utilized under Section 53-A, T.P. Act, because that provision has no retrospective effect. I may at once say that Section 53-A has no retrospective effect, as was held by this Court in Bhukhan Main v. Radhika Kumari Devi A.I.R (1938) . Pat 479. As regards the contention that the unregistered sale deed should not have been admitted in evidence, Section 17, Registration Act, gives a list of documents which must be registered, and Section 49 of the Act, provides: No document required by Section 17 to be registered shall (a) affect any immovable property comprised, therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property, or conferring such power, unless it has been registered. 5. The question therefore is whether an tunregistered sale deed like the present one can be received as evidence of any transaction affecting the property in suit. On the language of the Section, it is clear that it cannot be taken in evidence for the purposes of proving title to such property. In Varada Pillai V/s. Jeevarathnammal A.I.R. (1919) P.C. 44 the Privy Council has held that although some unregistered documents were not admissible in evidence to prove title they could nevertheless be referred to as explaining the nature and character of the possession thenceforth held by the party. One has to see therefore whether the finding of the Court below, that defendant 1 has acquired title by adverse possession, is vitiated in any manner by its having taken into evidence the unregistered sale deed. The learned Subordinate Judge says: After going through the records my opinion is that the unregistered kabala, Ex. 1 was really executed by Bhairo, and that it was executed with the intention of giving effect to it, although it was unregistered and so legally it would not pass title. In support of my observation that sale deed cannot legally pass any title I would refer to the ruling reported in Tilakdhari Singh V/s. Gour Narain A.I.R (1921) . Pat 150, which has been cited by the learned pleader for the appellants. 5. This view of the learned Subordinate Judge is quite correct. He has, after refer, ring to the other facts on record, come to the conclusion that the defendant first party has not been in adverse possession of the lands from the date of the kabala (Ex. 1) but in view of the receipts and the counterfoils, taken along with the testimony of D. W. 3 it seems to me that he has been in such possession openly and to the knowledge of Bhairo and Munshi at least since 1322. 6. The facts to which reference has been made in the earlier portion of the judgment are, that according to the terms of the sudbharna bond, which was admittedly executed in favour of defendant 1, before the commutation of rent, the sudbharnadar was to divide the produce with the landlord, and after commutation of the rent into nagdi, the mortgagor was to pay the rent and the sudbharnadar was to divide the produce with him, but it is clear from the statements made by the plaintiffs themselves (P. W. 2) and of Munshi Raut (P. W. 6) that Bhairo or Munshi never paid rent after the rent was commuted. These are the circumstances and some other facts on the basis of which the Court below has come to the conclusion that the defendant first party had matured title by adverse possession. Had the Court below taken the date of the unregistered sale deed as the starting point of the adverse possession, there might have been something to be said on behalf of the plaintiffs. 7. As it is, I am of opinion that the finding of the Court below on the question of adverse possession of defendant 1, is quite in accordance with law on the point. As to the argument that a mortgagee in possession cannot prescribe against the mortgagor, reliance has been placed by the learned Advocate on behalf of the appellants on the decision in Bakha Singh V/s. Ram Narain Singh . Generally speaking, that is so, but in Thottakur Govind V/s. Papakayala Mallaya A.I.R (1916) . Mad 811 it has been pointed out that in certain circumstances a mortgagee in possession can prescribe against the mortgagor, and I respectfully agree with the view taken in that case. In this view of the law I see no reason to differ from the decision of the Courts below, and I would dismiss the appeal with costs. Fazl Ali, J. 8. I agree. Mr. S.N. Bose appearing for the appellants relied on the observation of the Judicial Committee in Khirajmal V/s. Daim (1905) 32 Cal 296 to the effect that no possession short of the statutory period of sixty years nor acquiescence of the mortgagors not amounting to a release of the equity of redemption would be a bar or defence to a suit for redemption, if the parties were otherwise entitled to redeem. In my opinion the facts found by the Courts below in this case show that there was an acquiescence on the part of the mortgagor amounting to a release of the equity of redemption.