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Tikait Bishambhar Narain Singh v. Ajodhya Ram
Factual and Procedural Background
This is a defendants' second appeal in a suit for declaration of title and recovery of possession of cadastral survey plots 1786 and 1884 of village Serampur. The plaintiff alleged that in 1933 he obtained settlement of these plots from the then landlord by two unregistered hukumnamas, entered into possession, and had rent accepted by the Serampur estate. The estate was later sold and came under another proprietor. On 19 July 1942 the son of the previous proprietor allegedly dispossessed the plaintiff. The plaintiff initially brought a criminal case but was referred to the civil Court.
The defence asserted that the land had been previously settled by the proprietor with his wife, who remained in possession, and that the plaintiff's claimed settlement was false. The unregistered hukumnamas were not admitted in evidence. Both Courts below held that the plaintiff's tenancy was established by proof of possession, payment of rent, and obtaining receipts from both proprietors.
Legal Issues Presented
- Whether, given that the hukumnamas were unregistered and inadmissible in evidence, the existence of the plaintiff's tenancy could nonetheless be proved by other evidence (possession, payment of rent, receipts).
Arguments of the Parties
Plaintiff's Arguments
- The plaintiff claimed settlement of the disputed plots by two hukumnamas in 1933, had entered into possession, and had rent accepted by the estate; he relied on possession and rent receipts to establish tenancy and title.
Defendant's Arguments
- The defence contended that the land had earlier been settled by the proprietor with his wife, who remained in possession, and that the plaintiff's asserted settlement was false.
- On appeal the defendants contended that because the hukumnamas were unregistered and inadmissible, the tenancy could not be proved by any other evidence, relying on Bamautar Singh v. Juthi Tatma.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bamautar Singh v. Juthi Tatma (18 P.L.T. 1012) | Relied upon by respondents/appellants to argue that unregistered document precludes proof of tenancy by other evidence. | The court observed the case did not show the lease was for agricultural purposes (where oral creation of tenancy may be possible) and therefore distinguished it and did not accept it as controlling on the facts of the present case. |
| Janki Kuar v. Brij Bhikan Ojha (5 P.L.T. 541) | Stated proposition: where lease/grant is in form of a document, the document is the primary evidence of its terms and if unregistered it cannot be admitted as proof of transactions affecting property. | The court quoted the decision but emphasized its own reading that an unregistered document may be admissible for collateral purposes (e.g., to show nature of possession) and that subsequent conduct may supply defects in a written instrument. |
| Amir Ali v. Yakub Ali Khan (41 Cal. 847) | Enunciated that a tenancy can be proved without proving the lease, if there is any. | Cited as part of the settled jurisprudence supporting the proposition that tenancy may be established by means other than production of a lease document. |
| Ramnandan Prasad v. Tilakdhari Lal (A.I.R. 1933 Pat. 636) | Tenancy right under the Bengal Tenancy Act can be proved without producing the lease, if the lease is inadmissible for want of registration. | Relied upon by the court as authority that tenancy can be proved by other evidence where the lease cannot be admitted for want of registration. |
| Shyam Kreshto Shaw v. Ganesh Kahar (A.I.R. 1930 Pat. 20) | Held that an unregistered parcha may be admissible for collateral purposes to explain possession and that an unregistered document followed by possession may perfect tenant's title. | Quoted as directly supporting the proposition that unregistered documents, when followed by possession, can perfect a tenant's title and serve as collateral evidence to explain possession. |
Court's Reasoning and Analysis
The court focused on the single point raised in the second appeal: whether the inadmissibility of the unregistered hukumnamas precluded proof of tenancy by other evidence. The court addressed the argument relying on Bamautar Singh v. Juthi Tatma by distinguishing that decision on its facts (not showing an agricultural lease where oral creation of tenancy is recognized).
The court examined the principle from Janki Kuar v. Brij Bhikan Ojha, acknowledging the rule that where a lease is in the form of a document the document is the primary evidence of its terms and that an unregistered document cannot be admitted to prove transactions affecting property. However, the court emphasized the same authority's qualification that an unregistered document may be admitted for collateral purposes (for example, to show the nature of possession) and that defects in a written instrument may be supplied by the subsequent acts and conduct of the parties when those acts disclose a state of affairs consistent only with an agreement recognized and acted upon.
Relying on a line of decisions (including Amir Ali v. Yakub Ali Khan, Ramnandan Prasad v. Tilakdhari Lal, and Shyam Kreshto Shaw v. Ganesh Kahar), the court held that a tenancy may be established without producing the lease document itself where the lease is inadmissible for want of registration. The court noted authorities where an unregistered document was admissible for collateral purposes and where an unregistered document followed by possession perfected the tenant's title.
Applying these principles to the facts, the court accepted the findings of the lower courts that the plaintiff's tenancy had been established by proof of possession, payment of rent, and receipts from the proprietors, notwithstanding that the hukumnamas were unregistered and not produced as primary documentary evidence.
Holding and Implications
DISMISSED — The appeal was dismissed with costs.
Implications:
- The direct effect is that the plaintiff's title and possession claim, as found by the courts below on the basis of possession, payment of rent, and receipts, is upheld.
- The court affirmed the principle (as applied on these facts) that tenancy can be proved by evidence other than an unregistered hukumnama and that an unregistered document may be used for collateral purposes and, when followed by possession, can perfect tenant's title.
- The opinion does not purport to lay down a new, broader precedent beyond application of the cited authorities to these facts.
Meredith, J.:— This is a defendants' second appeal. The suit was for declaration of title and recovery of possession of cadastral survey plots 1786 and 1884 of village Serampur. The plaintiff's case was that he took settlement of these plots from the then landlord by two unregistered hukumnamas in the year 1933. Subsequently he entered into possession, and rent was accepted from him by the Serampur estate. The estate was sold up, and came under another proprietor. There, after, on 19th July 1942, the son of the preyious proprietor dispossessed him. He brought a criminal case, but was referred to, the civil Court.
2. The defence was that the land had previously settled by the proprietor with, his wife, who remained all along in possession, and the plaintiff's case of settlement was false.
3. The hukumnamas were not taken into evidence as they were unregistered, but both the Courts below have held that the plaintiff's tenancy had been established by proof of his possession, paymant of rent, and obtaining receipts from both the proprietors.
4. Only one point has been taken in second appeal, namely, that the unregistered hukumnamas being inadmissible the existence of the tenancy could not be proved by any other evidence. Reliance is placed on the case Bamautar Singh v. Juthi Tatma (18 P.L.T 1012)1. In that case, however, there is nothing to show that the lease in question was for agricultural purposes where a tenancy can be created orally without any written lease. The decision purports to follow Janki Kuar v. Brij Bhikan Ojha (5 P.L.T 5412 at p. 543), a portion of which decision is quoted. What was held in that decision was not that no other evidence to prove the existence of a tenancy could be accepted but merely that.
“If the lease or grant is in the form of a document, then the only evidence admissible in proof of the terms of the document is the document itself, and, unless it is registered, even the document itself cannot be admitted in evidence as proof of any transaction affecting the property.”
5. In that case their Lordships expressly stated:
“If the document is not registered it cannot under S. 49 be received in evidence of the lease and in such a case Section 91 of the Evidence Act, 1872, debars other evidence of the lease being given. But the document may be admissible for a collateral purpose e.g, to show the nature of the defendant's possession.”
6. They also observed:
“Where a written document is defective as a valid and finally concluded agreement such defect may be supplied by the subsequent actings and conduct of the parties, as where subsequent acts of the parties themselves disclose a state of affairs consistent only with the existence of an agreement mutually recognized and acted upon as if the instrument were binding.”
7. It is, in fact, well settled in a series of cases going back to Amir Ali v. Yakub Ali Khan, (41 Cal. 847,3) that a tenancy can be proved without proving the lease, if there be any. I need only cite the decision of Dhavle, J. in Ramnandan Prasad v. Tilakdhari Lal, (A.I.R 1933 Pat. 636,4) wherein his Lordship held that a tenancy right under the Bengal Tenancy Act can be proved without proving the lease, if there be one, which is inadmissible for want of registration, and, secondly, the decision of Fazl Ali, J. (as he then was) and Chatterji, J. in Shyam Kreshto Shaw v. Ganesh Kahar, (A.I.R 1930 Pat. 20,5) a case where a trespasser contended that the tenant had acquired no valid right of tenancy in a certain plot, inasmuch as he got settlement by virtue of a parcha which was not registered.
8. It was held that the document was admissible in evidence for a collateral purpose to explain the nature and character of possession, and, secondly, that the unregistered document followed by possession had perfected the tenant's title. It is open to a landlord to create a tenancy by giving possession and accepting rent, and clearly, therefore, such a tenancy can be proved by evidence other than the production of the hukumnama.
9. There is no substance in this appeal, and it must accordingly be dismissed with costs.
Ray, J.:— I agree.
V.R/D.H
10. Appeal dismissed.
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