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2006 DIGILAW 908 (RAJ)

Yusuf Ali Khan v. Vimal Kumar

2006-03-21

K.S.RATHORE

body2006
Honble RATHORE, J.—The present writ petition is directed against the judgments passed by the Sub Divisional Officer dated 18.3.1966, Revenue Appellate Authority dated 30.10.90 and Board of Revenue dated 16.1.95 in appeal and 18.3.98 in revision. (2). Learned counsel for the petitioner submitted that in the writ petition filed by Sita Ram defendant, this court held as under— "That unregistered and unstamped document could be taken into evidence for collateral purposes only. Even if the unregistered and unstamped document which was denied by the petitioner is taken into evidence for collateral purposes, it does not create any title in favour of the defendant in view of Section 49 of the Registration Act. A suit for specific performance under Chapter II of the Specific Relief Act, or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act or as evidence of any collateral transaction not required to be effected by registered instrument". (3). Learned counsel for the petitioner also referred Section 17 of the Registration Act which says that non-testamentary instrument which purports or operates to create, declare whether in present or in future, any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property shall be registered. (4). He also referred Section 41 of the Rajasthan Tenancy Act. 1955 which says that the interest of a khatedar shall be transferable otherwise than by way of sub lease subject to the conditions specified in Sections 42 and 43. Section 44 of the Transfer of Property Act says that a sale of immovable property of the value of Rupees one hundred and above can only be made by registered sale deed and under section 49 of the Registration Act, an unregistered document effecting immovable property and required to be registered could be taken as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act. (5). He further referred Section 5(54) of the Rajasthan Tenancy Act, 1955 which defines trespasser as a person who takes or retains possession of land without authority. (6). After referring the aforesaid provisions of law, learned counsel for the petitioner submitted that the respondents occupy the land in dispute as a sub tenant or under document Ex. (5). He further referred Section 5(54) of the Rajasthan Tenancy Act, 1955 which defines trespasser as a person who takes or retains possession of land without authority. (6). After referring the aforesaid provisions of law, learned counsel for the petitioner submitted that the respondents occupy the land in dispute as a sub tenant or under document Ex. D-l which does not create any title in the defendant respondents and they are in possession without any authority of law and being trespasser liable to be ejected from the land under section 183 of the Rajasthan Tenancy Act. Even a sub tenancy cannot be for a term exceeding 5 years and if a sub tenant on the expiry of the sub lease continues to be in possession is a trespasser. (7). The petitioner further submitted that the alleged document Ex.D-l denied by the plaintiff cannot confer any khatedari rights on the defendant Sita Ram, the suit for ejectment was filed on 3.8.64. If the defendant enters on the land in dispute, even on the basis of the alleged document dated 6.6.58 and his authority was withdrawn on 27.7.64 i.e., well within the period of 1.2 years of the cause of action as the defendant became a trespasser both as a sub tenant as well as on the basis of alleged document Ex.D-1. (8). The petitioner categorically submitted that the alleged Ex.D-1 was not got examined by the hand writing expert and the signatures of the plaintiff Panne Khan was not testified by the hand writing expert specially when the document was denied by the plaintiff. (9). In support of his submissions, learned counsel for the petitioner placed reliance on the judgment of the Full Bench of this Court in the case Nanga vs. Dhanna Lal reported in A.I.R. 1962 (Raj.) 68 = 1961 RLW 653, "Nihal Singh vs. Singhram & Ors. reported in RLR 1989(1) 384 = 1989 (1) RLW 454 wherein this court has held that "unstamped and unregistered document which is required under law to be stamped and registered cannot be admitted in evidence even for collateral purposes.". (10). He further referred the case of Hakim Ghulam Mohammad vs. Dr. Zahoor Mohammad reported in A.I.R. 1970 (Raj.) 171 wherein this Court again re-iterated that the document should compulsorily be registered. (11). (10). He further referred the case of Hakim Ghulam Mohammad vs. Dr. Zahoor Mohammad reported in A.I.R. 1970 (Raj.) 171 wherein this Court again re-iterated that the document should compulsorily be registered. (11). Per contra, learned counsel for the respondents submitted that the respondents purchased the land in dispute from the petitioner plaintiff on 5.6.58 i.e., Samvat 2016 against a consideration of Rs. 1,000/-and the petitioner plaintiff got executed a document in favour of the respondents. (12). So far unregistered document is concerned, learned counsel for the respondents submitted that it is admissible for the collateral purpose. To show the nature and quantum of possession learned counsel for the respondents placed reliance on the judgment reported in 1975 Delhi 267. (13). Learned counsel for the respondents submitted that this is second round of litigation. Earlier a writ petition (S.B. Civil Writ Petition No. 1866/75) was filed before this court and this court allowed the writ petition vide its judgment dated 9.7.84 and set aside the judgment and decree passed by the Revenue Appellate Authority, Sikar and the Board of Revenue and it was observed that Ex.D-1 is used as collateral purpose and remanded the case to Revenue Appellate Authority for fresh decision after hearing the parties. And in the second round all the courts below have given a concurrent finding that the petitioners have failed to prove the point that the respondents are trespasser and the court examining the documents and evidence held that respondents are not trespasser and being sub tenant became khatedar tenant by the provisions of the Rajasthan Tenancy Act, 1955. (14). Having heard rival submissions of the respective parties and perused the orders impugned passed by the Courts below and the judgments referred by the respective parties, all the courts below have considered the document in question and found that the possession was handed over in favour of the respondents and receipt was executed by the petitioner of Rs. 1025/- and on the basis of the document executed and consideration which was received by the petitioner plaintiff, the suit of the petitioner was dismissed by the S.D.O. and upheld by the Revenue Appellate Authority and Board of Revenue and oh the basis of evidence and document it was fully proved that the land in question was sold to the respondents and possession was handed over to them and therefore. Hi only on the basis that the document is not registered, the petitioner is not able to make out any case that the land is not sold to the respondents and the respondents are only trespasser. Thus, the judgments referred by the I petitioner are not applicable to the facts and circumstances of the present case. As such, the orders impugned do not require any interference by this court. (15). Consequently, the writ petition fails and hereby dismissed with no orders as to cost.