RUP NARAIN PANDEY Vs. SHEO SAGAR TEWARI

JUDGEMENT

(1.) This is an appeal by the plaintiffs arising out of a suit for recovery of bhaoli rent for the plaintiffs share for the years 1339 to 1342 Fasli in respect of the holding situated in village Ahraw in which the plaintiff is a rehandar by virtue of a rehan created in his favour in the year 1916. The defence is tjhat the lands are bishunprit rent-free lands and no rent is payable to the maliks on the basis of an unregistered danpatra deed bearing date: 25 Chait 1326, Fasli, corresponding to 1919, and since then the defendant is in possession of the suit lands without payment of rent to the maliks. It will be noticed that the lands are alleged to have been created free from the liability to pay rent after the rehan was executed. The trial Court granted a decree to the plaintiffs fixing the quantity of paddy at the rate of 10 maunds a bigha and paira keraw at the rate of l maunds a bigha on the sale rates given by the plaintiffs. Damages were also awarded at 6 per cent, with future interest at six per cent. The defendant then appealed to the learned Subordinate Judge of Arrah who rightly held that the claim for the years 1339 to 1340 was barred by limitation. The learned Subordinate Judge however held that the lands were rent-free. Hence the appeal before me.

(2.) It was admitted before me that no valid gift could be founded on an unregistered document and that the unregistered deed of danpatra was inadmissible in evidence. The learned Judge himself came to the same conclusion but he relied upon a number of cases which he has quoted in the judgment for the proposition that the unregistered deed could be used in evidence for a collateral purpose. That is undoubtedly correct, but the learned Judge has used the unregistered deed not for a collateral purpose but for the very purpose for which the statute forbids the user. The only col. lateral purpose to which this unregistered deed could be used was to show that the defendant entered into possession in 1326; but this is not denied. I fail to understand how the unregistered danpatra could be used to create a title in favour of the defendant nor does the fact that the defendant has not paid any rent for more than 12 years create a prescriptive right in the defendant to hold the disputed land as rent-free.

(3.) In the present case, it is unnecessary to consider this matter any further because upon the finding that the plaintiff was a rehandar and therefore in possession from 1916, the mortgagor had no right whatsoever left in him to create, even if he did want to create a right in the defendant to hold the land rent- free as a tenant. Such a right could be given only by the mortgagee in possession but even that would not be binding against the mortgagor unless the settlement was made bona fide in the ordinary course of management. For these reasons, the decision of the learned Subordinate Judge cannot be upheld. The plaintiffs will be entitled to a decree for the bhaoli rent for the years 1341 and 1342 Fasli only. Regarding the quantity of produce, the trial Court, as already pointed out, had fixed the rate of paddy at 10 maunds a bigha and paira keraw at 1 maunds a bigha. Instead of remanding the case and putting the parties to unnecessary harassment, I have, on hearing the parties, decided that for the years in suit, the quantity of paddy should be fixed at 6 maunds a bigha and paira keraw at 1 maunds a bigha. The sale rates will be as fixed by the trial Court. The decree will be prepared accordingly.