P L D 1957 (W (PLP)

MUHAMMAD SHAFI, J.‑--Mst. Nur Khanam, wife of Khair Muhammad, instituted a suit against Sheikh Ahmad, son of Jamaldin, and nineteen others for the possession of Khasra Nos. 675 to 679, 680, 681, 683 and 688 situated in Havelian, Hazara District. She averred in the plaint that this property originally belonged to her husband Khair Muhammad, who on the 12th of August 1931, by mutation No. 6289, attested on the 25th of December 1942, leased it out for a period of 20 years at the rate of Rs. 24 per annum in favour of Sheikh Ahmad (defendant No. 1). She further stated in the plaint that she had now stepped into the shoes of her husband as owner of the property, and as 20 years had expired therefore, she was entitled to get back the possession of the property from Sheikh Ahmad. The plaint was twice amended on several minor facts. The principal claim of the plaintiff, as reproduced above, however, remained the same. The suit was contested by the defendants on several grounds as a result of which originally five issues were framed and to which a sixth was added on the 3rd of November 1952. The issues were as under:‑ (1) Whether the suit is competent in its present form? (2) Whether the suit is properly valued for Court‑fee and jurisdiction? (3) Whether the plaintiff is the owner of the suit property? (4) Whether defendant No. 1 is a lessee for 20 years and is evictable? (5) Relief? (6) Whether defendant No. 1 has made improvements in property in suit? If so, whether and to what amount he is entitled, if any? In evidence, while Mst. Nur Khanam depended on mutation No. 6289 referred to above, Sheikh Ahmad produced two unregistered documents, dated the 20th of November 1930, and the 12th of August 1931, purporting to have been executed by Khair Muhammad and leasing out certain property by the first document, in favour of Abdul Karim and Sheikh Ahmad, and by the second document, in favour of Abdul Karim son of Hayat Muhammad for an unlimited period. On the basis of these documents. Sheikh Ahmad claimed that the lease in his favour was perpetual, and there fore, he was not liable to be dispossessed. The learned trial Court refused to admit the above two documents into evidence, saying that being unregistered, they were excluded from evidence under section 49 of the Registration Act. It, however, found that the defendants had constructed some property over the land in dispute, the value of which was Rs. 3,040 which the plaintiff was liable to pay. He consequently granted the plaintiff a decree for the possession of the disputed property on payment of Rs. 3,

040. He left the parties to bear their own costs. On appeal, the learned District Judge Hazara held that the documents mentioned above could be admitted into evidence to show the character and nature of the possession of the property, viz., that the defendants were in possession of the property on the basis of a perpetual lease. He further held that the property in suit was not land, and, therefore, Mutation No. 6289 was absolutely irrelevant. Accepting the appeal of Sheikh Ahmad, he dismissed the plaintiff's suit with costs throughout. Mst. Nur Khanam has come up on Further Appeal to this Court. The only question which has been argued before me with great ability by the learned counsel appearing for the appellant as well as for the respondents, is whether the above mentioned two documents can be connected with the property in dispute, if so, whether they were admissible in evidence. It was conceded by both the counsel that Mst. Nur Khanam has validly stepped into the shoes of her husband, Khair Muhammad, as an owner of the property in dispute. It was further conceded that the amount of improvements assessed by the learned trial Court is correct and cannot be interfered with. By the first document, dated the 20th of November 1930, Khair Muhammad leased out a vacant site situated in Havelian Station the length of which was 14 yards and breadth on one side 11 yards, and on the other, 2J yards, in favour of Abdul Karim and Sheikh Ahmad, at the rate of Rs. 11 per annum. The document showed that the lease was perpetual and the boundaries of the vacant site given in the deed were as under:‑ East‑

thoroughfare, West and North‑

Road, and South‑

the Mandi of Khair Muhammad. By the second deed, Khair Muhammad purported to lease out perpetually a vacant site situated in the same place boarded as under:‑ East‑the land of Mst. Bhajjan Kaur, West and North‑roads, and South‑the houses of Khair Muhammad. The rent payable was Rs. 24 per annum which was to be paid every six month in two equal instalments. It was further agreed between the parties that if the rent was not paid as agreed to, Khair Muhammad would have a right to enter into possession of the property and eject the lessee. The second document, as has already been mentioned, was in favour of Abdul Karim son of Hayat Muhammad. No Khasra number was given of the vacant site in both the deeds. On the other hand, the old Khasra number of the land in dispute, the present Nos. of which have already been given in this judgment, was 2626/2328. On the 17th of September 1942, Mutation No. 6289 with regard to their Khasra numbers was entered by the Patwari and it was in favour of Mst. Khani Begum and Sheikh Ahmad. The mutation came up for attestation on the 25th of December 1942. Both Sheikh Ahmad and Khair Muhammad appeared. Khair Muhammad stated that Sheikh Ahmad, being a non‑agriculturist, was not entitled to have the lease of the property for a period exceeding 20 years. The attesting officer admitted this contention of Khair Muhammad, and mutated the lease of the 2/3rd of this Khasra No. at the rate of Rs. 24 per annum in favour of Sheikh Ahmad alone for a period of 20 years, starting from the 12th of August 1931. In the attesting order, a deed is stated to have been produced which was dated the 12th of August 1931, and was executed in favour of Sheikh Ahmad. It is clear from the reading of the first deed, dated the 20th of November 1930 that it has absolutely no connection with the land in dispute, because the Khasra Nos. in dispute have not been mentioned in that deed. It is dated the 20th of November 1930, and not the 12th of August 1931. It is in favour of Abdul Karim and Sheikh Ahmad, and not in favour of Sheikh Ahmad alone, and lastly, the rent fixed was Rs. 11 per annum, and not Rs.

24. The second deed, although it is of the same date as the deed referred to in the mutation, yet, it appears, it is an absolutely different to it, and has no connection with the land in dispute. This deed is in favour of Abdul Karim, son of Hayat Muhammad, and not Sheikh Ahmad. The Khasra No. of the land in dispute is not given therein. It is obvious that the two deeds relate to different property, because if it related to the same property, then Khair Muhammad, after having given a perpetual lease of it to Abdul Karim and Sheikh Ahmad, could not have executed the second lease, giving the perpetual lease of the same property to Abdul Karim alone. I am consequently driven to the inference that these two deeds are absolutely extraneous to the subject‑matter of the dispute in this case. A deed must necessarily have been executed in favour of Sheikh Ahmad for the land in dispute on the 12th of August 1931, but this deed is being withheld by Sheikh Ahmad defendant. This circumstance raises a very strong presumption against him that if it had been produced, the contents of it would have gone very much against his case. Be that as it may even if these two deeds are considered to relate to the property, in dispute, still I am of the view that they cannot be admitted into evidence to prove that the lease was a transfer of a right to enjoy the property in dispute in perpetuity. Under section 17 of the Registration Act all leases of immovable property from year to year for any term exceeding one year or reserving a yearly rent, shall be registered. Under section 49 of the same Act, no document required by section 17, or by any provision of the Transfer of Property Act to be registered, shall affect any immovable property comprised therein, or be received as evidence of any transaction affecting such property or conferring such power. It has been held consistently by all the High Courts that an unregistered document which requires registration under section 17 of the Registration Act can be admitted into evidence for a collateral purpose, viz., to prove the nature and character of the possession of the defendants as from the date of the deed, though the character and nature of the possession cannot be separated from the main transaction evidenced by the document. This was the view taken by this Court, after reviewing several authorities in case Muhammad Khan and another v. Muhammad Zaman Khan (P L D 1956 Pesh. 12). A distinction has however, got to be drawn between the character and the nature of the possession of certain person and character and nature of the transaction. While the document is admissible to prove the character and nature of the former, I do not think it is admissible to prove the character and nature of the latter. The fact whether a lease of immovable property is made for a certain term express or implied, or in perpetuity, or for a certain consideration can certainly not be covered by the term "collateral purpose". They are the essential terms of the lease and cannot be proved by a document which is not by the law governing such document admissible in evidence. Some of the authorities upon the point may be noted below:‑ (1) In case Maung Po v. R. Muniandy Servai (A I R 1917 L Bur. 67), it was held that a tenant cannot prove the permanent nature of his possession by means of an unregistered lease which is inadmissible in evidence. (2) Moti Sagar v. Dhanna Mal and others (A I R 1922 Lah. 329), found that an unregistered‑deed of lease compulsorily registrable is not admissible in evidence, nor can it be admitted in evidence, to prove that the property to which it relates, was let for a term of years. It was further held that any attempt to prove the terms of the lease by oral evidence would be excluded. (3) Schindra Mohan Ghose v. Ramjash Agarwalla (A I R 1932 Pat. 97), held that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be` admitted in evidence, and that to use a document for the purpose of proving an important clause in the deed is not using it for a collateral purpose. (4) Badal Chandra Sadhukhan v. Debendra Nath Dey (A I R 1933 Cal. 612), held that a permanent lease can be created only by a registered instrument. If it is unregistered, it does not create any title in favour of the tenant, nor can it be construed as an agreement to lease on the basis of which a claim for specific performance can be made by the tenant, for even this requires registration before it can be put forward. The unregistered document is certainly admissible for all collateral purposes, but for the purpose of the tenant's defence against eviction either as having created a permanent title to him or as entitling him to a permanent lease, it is useless. (5) Ram Lal Sahu and another v. Mst. Bibi Zohra and others (A I R 1940 Pat. 37), lays down that where the agreement or Kabuliyat by which a tenancy was created is not registered, and no patta in respect of the tenancy is produced, both on the ground that the Kabuliyat is not registered and, on the ground, that there is no patta, the Kabuliyat is inadmissible for the purpose of proving that the tenancy is permanent. (6) Surja Mohan Thakur and others v. Ram Prasad Pandy and others (A I R 1940 Pat. 37), held that the terms of a tenancy cannot be determined by looking at an unregistered Kabuliyat or patta. (7) Mst. Shankari and others v. Milkha Singh (A I R 1941 Lah. 407), held that no equitable doctrine can override the specific provisions of section 49 and operate so as to make an unregistered document create a title if it requires registration. (8) Fateh lal Shah and others v. Dayalal Bishrambhai (A I R 1949 Nag. 218), held that the question as to who is the tenant and on what terms he is created a tenant are not collateral facts. They are important terms of the contract of tenancy which cannot be proved by admission of an unregistered lease deed into evidence. No authority to the contrary has been produced by the other side except Vishvanath Baibatrao Deshpande v. Ranganath Dhondo Deshpande and others (A I R 1942 Bom. 268). In this case, it appears that in Bombay Presidency there is a special rule of law that a permanent tenancy can be acquired by prescription and there can be an adverse possession of a limited interest in a property as well as full title of the owner. The learned Judges seem to have come to a conclusion, after considering several facts, that there was the acquisition of permanent tenancy by adverse possession in the property in dispute. The learned Judge Wassoodew observed in the concluding portion of his judgment that there was no fixity of assessment, but it was to vary according to the survey rates. There was also no limit to the duration of the lease and the tenant was given freedom to enjoy the property and improve it as he liked. These, accord ing to the learned Judge, were indicia of the permanent character by the tenure. In my view, this case has no application to the present case, but even if it has, I would not like to follow it in the face of numerous authorities discussed above to the contrary. I consequently hold that the two documents are inadmissible in evidence to prove the permanent nature of the tenancy. The two documents, having been excluded from consideration, then the terms of the tenancy can only be proved by looking at the mutation. If the mutation is also excluded from consideration, then it must be assumed in the absence of any evidence to the contrary, that the tenancy was from year to year for a period exceeding one year, or tenancy‑at‑will and such a tenancy is determined on the expiry of the period, or on a mere demand, or by suing for possession. The necessary consequence of the above discussion is that the owner of the property is entitled to get back the possession thereof from the defendants, who are either tenants‑at‑will, or tenants for a period of twenty years. In the case of the latter, the twenty years having expired, the defendants became liable to be ejected at once. In the case of the former, a mere suit for possession is enough to put them out of Court. Before I part with this case I wish to make it clear that the observation of the learned Appellate Court that the land in dispute is not land, and therefore, the mutation has no relevancy at all seems to be absolutely beyond the point. The main thing which had to be considered by the Courts was whether the two deeds on which the defence based their claim, were admissible in evidence, and for the purpose of the decision of this case, it was not at all necessary to go into the question whether the land was land within the definition of the Punjab Land Revenue Act, or not. The further appeal is accepted, the judgment and decree of the lower Appellate Court is set aside, and that of the trial Court is restored with costs throughout. A. H. Appeal accepted.