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1952 DIGILAW 26 (RAJ)

Vakil Thikana Lawan v. Kanhiyalal

1952-01-29

HETUDAN UJJWAL

body1952
1. This second appeal arises in a suit for recovery of possession of land. The plaintiff filed a suit in the court of the Assistant Collector E)ausa alleging that the defendants No; 1 and 2 had forcibly dispossessed his sub-tenants, defendants Nos. 4 and 5 and had taken forcibly possession of the land. The plaintiff produced an unstamped and unregistered document purporting to show that he had received that land from the jagirdar in consideration of money advanced to the jagirdar. An objection was raised on behalf of the defendant that the document being a mortgage-deed and being unregistered could not be received in evidence. The Assistant Collector upheld the objection and held the document inadmissible in evidenced. The plaintiff appealed against this order to the Commissioner Jaipur, who set aside the order of the Assistant Collector and held that the document which was unregistered was admissible in evidence for the collateral purpose of showing the nature of the plaintiffs possession over the land. 2. This second appeal has been filed against the order of the Commissioner. It has been urged by the counsel for the appellant that the Additional Commissioner had no jurisdiction to entertain the appeal against the interlocutory order of the Assistant Collector. In support of this contention the counsel has cited Rule 107 of the rules framed under sec. 8 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. 1950. 3. Rule 107 reads as under: — "Appeals from final decree and interin orders. All orders passed under rules 88-175 and the final decree made under rule 106 shall be appealable." Rules 88-105 relate to partition and the final decree under rule 106 also refers to final decree for partition. Thus this rule 107 relates clearly to final decree and interim orders passed in partition proceedings and does not apply to other orders. It cannot, therefore, be inferred that only orders passed under rule 88-105 are appealable and not other orders. 4. On the other hand sec. 18 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 lays down that "Unless an order or decree is expressly made final by any law in force in a covenanting State a first appeal shall lie to the court authorised to hear the same under sec. 4. On the other hand sec. 18 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 lays down that "Unless an order or decree is expressly made final by any law in force in a covenanting State a first appeal shall lie to the court authorised to hear the same under sec. 19 from every original decree or order passed in any suit or on any application specified in the first and second schedules." Thus according to this section every original decree or orders passed in any suit is appealable and under sec. 19 (iii) an appeal from orders passed in suits by an Assistant Collector lies to the Commissioner. Therefore, the appeal had been rightly entertained by the Commissioner. 5. Secondly on the merits of the case it is argued that the document being a mortgage deed was compulsorily registrable under the Jaipur Registration Act and since it was not registered it could not be admitted in evidence. In support of this contention the counsel for the appellant has referred to a decision of the Jaipur High Court of 1947 in Boduram vs. Rameshwar, reported on page 120 & 121 of Jaipur Law Reports. This was a case for redemption of mortgage and the unregistered deed was held to be inadmissible. In this case, however the mortgage deed is not produced to either redeem the mortgage or to foreclose, nor the terms of the mortgage are required to be proved. The purpose of putting this document in evidence is only to show the fact and the date of possession. 6. According to proviso to sec. 49 of the Registration Act an unregistered document effecting immovable property can be used as evidence of any collateral transaction not required to be affected by a registered instrument. It has been held by several High Courts that an unregistered document is admissible to prove or determine nature of possession. A distinction has been drawn between the use of an unregistered document as evidence of a transaction affecting movable property and use of such document in evidence : the proviso permits the use in evidence of unregistered document, though that document affects immovable property, if the purpose of its use is any purpose other than that creating, declaring, assigning, limiting, or extinguishing the right to an immovable property. An unregistered document can, therefore, be admitted and used in evidence in a suit which is not between the mortgagor and the mortgagee for enforcing or pertaining to the enforcement of any of the terms of the mortgage but to show the fact of possession. 7. The document sought to be admitted in evidence in this case is not an ordinary mortgage deed but is really a parwana or patta granted by the jagirdar authorising the plaintiff to hold the lar:d till the debt due to him is paid. Such paru anas or pattas were not required to be stamped or registered. Besides, this document is dated Smt, 1942 when the Registration Act had not been introduced in the former Jaipur State. 8. The document on account of the reasons given above is clearly admissible in evidence and the order of the Additional Commissioner is, therefore, upheld and the appeal is dismissed.