P L D 1952 Peshawar 68 (PLP)

MUHAMMAD SHAFI, J.‑The land in suit which bears Khasra No. 1095, measure 43 kanals 16 marlas, and is situated in Kazipur, belongs to several persons, including Fazal Khan, and Dost Muhammad Khan, sons of Qalandar Khan. The owners by Mutation No. 1810; attested on 9th December 1945, created occupancy tenancy in this land in favour of Saida, son of Nur Ahmad. This latter person consequently became an occupancy tenant of this land under section 8 of the Punjab Tenancy Act. On the 20th of July 1950, the said Saida brought a suit against Jana for possession of half of the above land, on the ground that the defendant was in occupation thereof without any right, and he was thus liable to be ejected. In para. No. 4 of the plaint it was stated that the defendant was asserting his right to the property in suit on the basis of an unregistered, and unstamped receipt, but in fact he had no right thereto. Jana resisted the suit inter alia on the ground that rights in the land in suit had been transferred to him by Saida by an instrument of transfer dated 21st May 1946, and that he was put in possession thereof immediately after the execution of the above document. He consequently contended that he was rightfully in possession of the property in suit and could not be dispossessed. The learned trial Court framed only one issue in' the case besides that of relief. It was, whether the defendant is purchaser for consideration of half of the occupancy rights belonging to the plaintiff, and as such the plaintiff has no cause of action ? The learned trial Judge decreed Plaintiff's suit on the simple ground that the document relied upon by the defendant was unregistered, and since it conveyed property worth more than. Rs. 100, it could not be admitted into evidence, and that the defendant was, therefore, not in lawful possession of the property conveyed. An appeal against this order was dismissed by the learned District Judge Hazara. The defendant has come up on revision to this Court. The document in question was both unstamped and unre gistered. The first defect was removed, when the defendant paid the stamp duty as well as the penalty required by law. So far as its execution is concerned, the plaintiff admitted it in his evidence, but stated that the defendant had his thumb -impression taken on this document during the days when sugar was supplied on quota system. Saida, however, failed to produce any evidence in Court to substantiate his allegation that the defendant had this document thumb-impressed by him fraudulently and under some misrepresentation. On the other hand, the defendant produced Taj Muhammad Khan, the scribe and marginal witness of the deed in question, who stated that Saida executed the disputed document and put his thumb‑impression on it after he had heard it and admitted its contents as correct. In the absence of any evidence that the thumb‑impression of Saida was taken fraudulently. I am bound to hold that this document was executed by Saida of his own freewill and accord, after he had heard and fully understood the contents thereof. This document, thus, having been proved genuine, unmistakably proves the transfer of half of the occupancy rights in Khasra No, 1095 in favour of the defendant. This document, being unregistered, cannot create any active title in the property it purports to transfer in favour of the defendant. It is, however a fairly well‑established principle of law that a document which is not registered can be produced and admitted into evidence in order to prove the collateral purpose, for example the nature of possession of a certain person, over a certain property. Acting on the same principle I am of the view that a person, who has been put in possession of the property as a result of an unregistered document, can protect his possession by the production of that document, and non‑suit the person, who has executed it and has actually put him in possession of the property. This is the view which was taken by a Full Bench of the Lahore High Court in Mst. Shankari and others v. Mdkha Singh reported as A I R 1941 Lah. p.

407. I consequently hold that the document in question although it could not form the basis of a suit for possession, it certainly is available to the defendant for purposes of defence against Saida Plaintiff. The learned lower appellate Court has in dismissing the appeal of Jana relied upon a case of this Court Aya Singh v. Nazir reported in 1943 Pesh. L J, p.

82. The facts of that case were, however, different, because therein a person wanted to prove by production of an unregistered document that a certain mortgage had been redeemed. It was not a case in which a document was being produced as a defence in order to protect one's possession of the property dealt with by such a document. I, therefore, find that Saida had no cause of action to bring the suit, and he could not in any case dispossess Jana, whom he voluntarily put in possession of the property in suit. I consequently accept this revision petition, set aside the judgments and decrees of the two Courts below, and dismiss Saida's suit with costs throughout. Order Announced. A. H Petition accepted.