IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT IN S.B. Civil Second Appeal No.107/1985 Roshan Bai Daughter of Shri Ram Chandra ...plaintiff-appellant Versus Madan Lal S/o Shri Bhuralal ...defendant-respondent Date of Judgment ::: 21st August, 2006 PRESENT HON’BLE MR. JUSTICE NARENDRA KUMAR JAIN Shri Sagar Mal Mehta, Senior Advocate, with Shri Anil Mehta for the plaintiff-appellant Shri B.L. Mandhana for the defendant-respondent By the Court:- The instant second appeal, under Section 100 of the Code of Civil Procedure, on behalf of the landlord- plaintiff-appellant (for short, ‘the plaintiff-appellant’) Roshan Bai was admitted by this court on 8th of October, 1985 and following substantial questions of law were formulated:- “1. That whether the facts and circumstances of the case, on the basis of pleadings can it be said that it is a default (wrongly written as “default” in place of “denial”) of title as if so whether the plaintiff is entitled for a decree? 2. Whether in the facts and circumstances of this case the lease- deed can be used as rent note?” // 2 // During the course of arguments, this court further formulated following additional substantial questions of law on 3rd of August, 2006:- “1. Whether, in the facts and circumstances of the present case, the finding of both the courts below in respect of issue no.1 is perverse and based on misreading of evidence? 2. Whether the suit of eviction of tenant can be converted into a suit for title in respect of third person? 3. Whether Exhibit-1, the rent-note, is admissible in evidence fully or it is admissible only for collateral purpose?” Arguments of both the parties were heard on aforesaid substantial questions of law involved in this second appeal. Briefly stated the facts of the case for adjudication of the aforesaid substantial questions of law involved in this second appeal are that the plaintiff- appellant filed a suit for eviction against the defendant- respondent on 9th of March, 1970 in the lower court on the ground of default in making the payment of monthly rent, bona-fide necessity of the rented premises and denial of title of the plaintiff-appellant by the defendant- // 3 // respondent in respect of rented premises. It was pleaded in the plaint that there was one piece of land belonging to one Raj Bahadur S/o of Shri Shiv Shankar and out of this land, a land measuring 24 feet east west and 13.6 feet north south was taken on rent by the defendant-respondent Madan Lal for a period from ‘Kaartik Sudi Ekam Samvat 2014 to Ashaad Sudi 15 Samvat 2015’ (nine months) at the rate of Rs.5.50p. per month and the defendant-respondent Madan Lal took possession thereof and paid Rs.10/- towards rent. The defendant-respondent Madan Lal executed a rent-note dated 17th of November, 1957 (Exhibit-1) in favour of Raj Bahadur and the original ‘teharir’ i.e. rent-note is in possession of Raj Bahadur. The description of the rented/disputed land is given in Para no.1 of the plaint. It was further pleaded that Raj Bahadur sold his aforesaid rented land as well as his land adjacent thereto situated towards the western side through registered sale-deed dated 11th of July, 1969 (Exhibit-6) to Nand Lal S/o of Shri Jagannath, and information about this sale was given by Raj Bahadur as well as Nand Lal, both, to defendant Madan Lal and it was directed that now rent may be paid to Nand Lal. Thereafter Nand Lal sold this land, purchased by him from Raj Bahadur, to plaintiff Roshan Bai through registered sale-deed dated 3.12.1969 (Exhibit-17) and information of this sale was also given by Nand Lal as well as the plaintiff to defendant Madan Lal and the defendant was directed to pay the rent of the rented land, in dispute, to plaintiff Roshan Bai. It was further pleaded that defendant Madan Lal // 4 // paid the rent to Raj Bahadur in the sum of Rs.10/- only during the period from 17.11.1957 to 11.7.1969, and the remaining rent was not paid by him. Thereafter no rent was paid to Nand Lal or to plaintiff Roshan Bai, therefore, he has committed a default in making the payment of rent continuously for more than six months and, as such, the plaintiff is entitled to get a decree of eviction in her favour against the defendant. The plaintiff also sought eviction on the ground of personal bonafide necessity of rented land. It was also pleaded that the plaintiff served a notice dated 20.11.1969 (Exhibit-8) on the defendant, terminating his tenancy and to handover the possessions of the same to the plaintiff. The notice was received by the defendant and the defendant gave reply (Exhibit-19) to the notice through his Advocate Shyam Kishore to Advocate Ramesh Goyal, counsel for the plaintiff. In the reply to the notice it was stated that neither the land in dispute was belonging to Raj Bahadur nor the same was taken on rent from Raj Bahadur. It was also stated that the defendant is the owner of the land in dispute and he denied the relationship of landlord and tenant. Thereafter the plaintiff again served a notice dated 10.1.1970 (Exhibit- 14), forfeiting the tenancy of the defendant, which was received by the defendant on 12.1.1970 and, as such, the plaintiff is entitled to get a decree of eviction on this ground i.e. ‘denial of title’ also from the defendant. The arrears of rent and mesne profit were also claimed in the plaint. // 5 // The defendant-respondent filed his written statement on 16.12.1970, wherein it was pleaded that the rent-note (Exhibit-1) is not admissible in evidence as it is unstamped and unregistered. Para 1 of the plaint, relating to measurement of the land in dispute, was denied. Para 5 of the plaint, relating to bonafide necessity of the rented premises, was denied. Para 6 of the plaint, relating to denial of title, was denied with explanation. In additional pleas in the written statement, the defendant pleaded that the defendant and his father are in possession of the disputed land for last 32 years and no one has objected the possession of the defendant, therefore, the defendant has acquired the land by way of adverse possession. It was also pleaded that the disputed land was belonging to one Devi Prasad and his sons are alive, who are legal heirs of Devi Prasad. Raj Bahadur has no right whatsoever in the disputed land, therefore, he had no right to sale the same and the plaintiff has no right whatsoever in the disputed land. It was also pleaded that Raj Bahadur was not in possession of the disputed land nor he gave possession of the same to defendant nor the defendant executed any rent-note in favour of Raj Bahadur. The other pleas were also taken in the written statement and it was urged that the suit of the plaintiff be dismissed. On the basis of the pleadings of the parties, the learned lower court framed 12 issues on 9th April, 1971 and the same have been reproduced in the judgment dated // 6 // 6.2.1981 of the lower court. Issue no.1 framed in the present case is whether defendant Madan Lal took disputed land on monthly rent of Rs.5.50p. from Raj Bahadur for the period from Kaartik Sudi Ekam Samvat 2014 to Ashaad Sudi 15 Samvat 2015 and got the possession of the same and paid Rs.10/- towards the rent for it and the defendant Madan Lal executed rent-note dated 17.11.1957 and signed it. Issue no.2 is whether Raj Bahadur sold the disputed land to Nand Lal vide sale-deed dated 11.7.1969, and Nand Lal and Raj Bahadur gave notice about it to defendant. Issue no.3 is whether Nand Lal sold the disputed land to plaintiff Roshan Bai vide sale-deed dated 3.12.1969. Issue no.4 is in respect of default in making the payment of rent continuously for more than six months. Issue no.5 is in respect of bonafide necessity of the rented premises and whether the plaintiff is entitled to get a decree of eviction on this ground. Issue no.6 is whether the valid notice for terminating tenancy of the defendant was given to the defendant. Issue no.7 is in respect of denial of title of the rented premises by the defendant. Issue no.8 is whether the plaintiff is entitled to receive rent and costs. Issue no.9 is whether the suit is not on proper stamps. Issue no.10 is whether there is adverse possession of the defendant and his father on the disputed land. Issue no.11 is whether the disputed land belongs to Devi Prasad, and that Raj Bahadur had no right to sale it and what is the effect of it on the suit. Issue no.12 is whether the defendant is entitled to receive special costs of Rs.500/-. // 7 // Additional issue i.e. issue no.5-A was also framed on 24.11.1976, which is in respect of comparative hardship of the rented premises. In support of her case, the plaintiff examined PW-1 Raj Bahadur (original owner of the disputed land), PW-2 Duli Chand (witness of Exhibit-1), PW-3 Gulab Chand (witness of Exhibit-1), PW-4 Bhawani Shankar, PW-5 Shyam Sunder, PW-6 Nand Lal (to whom the property was sold by PW- 1 Raj Bahadur through Exhibit-6 the registered sale-deed dated 11.7.1969), PW-7 Roshan Bai (the plaintiff), PW-8 Govind Prakash and PW-9 Tej Karan. The plaintiff also produced documentary evidence Exhibit-1 to Exhibit-21. The defendant Madan Lal examined himself as DW-1, DW-2 Bherulal, DW-3 Durgalal, DW-4 Prabhulal and DW-5 Sukhlal. After hearing the arguments, the learned lower court, vide its judgment and decree dated 6.2.1981, dismissed the suit of the plaintiff-appellant. The lower court decided all the issues, except issues no.9 and 12, in favour of the defendant-respondent. Being aggrieved with the judgment of the lower court, an appeal was preferred and, the lower appellate court, vide its judgment and decree dated 18.3.1985, also dismissed the appeal of the plaintiff-appellant. The lower appellate court, however, decided issues no.2, 3, 4, 6, 7, 8, 9, 10 and 12 in favour of the plaintiff-appellant and decided issue no.1, 5 and 11 against the plaintiff-appellant and in favour of the defendant-respondent. Issues no.7 and 8 were decided in favour of the plaintiff-appellant subject to decision of // 8 // issue no.1. However, in view of the finding of issue no.1, the learned lower appellate court dismissed the appeal of the plaintiff-appellant. Hence, this second appeal has been preferred on behalf of the plaintiff-appellant before this court. I have heard the learned counsel for both the parties on the aforesaid formulated questions of law and considered their rival contentions. The learned Senior Advocate Shri Sagar Mal Mehta, appearing on behalf of the plaintiff-appellant, contended that the entire decision of the case is based on finding of the courts below in respect of issue no.1. He contended that so far as other issues are concerned, the learned lower appellate court has reversed the finding of the lower court and the same have been decided in favour of the plaintiff-appellant. Even the finding of the lower court in respect of issue no.7, relating to denial of title, has been reversed and the said issue has been decided in favour of the plaintiff-appellant. The lower appellate court has held that the defendant-respondent has denied the title of the plaintiff-appellant in the facts and circumstances of the present case. However, this finding is subject to the finding of issue no.1. The learned lower appellate court has also reversed the finding of the lower court in respect of issue no.10 relating to adverse possession of the defendant-respondent over the rented/disputed land and decided the same in favour of the plaintiff-appellant by holding that the defendant cannot be said to be in adverse // 9 // possession of the disputed/rented land. He, therefore, mainly challenged the finding of the courts below in respect of issue no.1 and contended that the disputed land was given on rent to the defendant-respondent by Raj Bahadur vide written lease-deed/rent-note (Exhibit-1) to defendant-respondent and the execution of the rent-note is proved from the statements of PW-1 Raj Bahadur, PW-2 Duli Chand, PW-3 Milap Chand and that of DW-1 the defendant- respondent himself. He contended that the lower court initially held that the rent-note (Exhibit-1) is not admissible in evidence. However, the lower appellate court modified the finding of the lower court and held that the same is admissible for collateral purpose. He contended that the execution of the rent-note is admitted by DW-1 Madan Lal, the defendant himself in his statement and the same is also proved from the statements of PW-1 Raj Bahadur, PW-2 Duli Chand and PW-3 Gulab Chand, and even if it is unstamped and unregistered then still it is admissible in evidence and even if for the sake of arguments it is assumed, although not admitted, that it is not admissible in evidence then at-least for collateral purpose the same is admissible. He further contended that the lower appellate court itself has recorded a finding that the rent-note (Exhibit-1) is admissible in evidence for collateral purpose and the said finding of the first appellate court has not been challenged by defendant- respondent and the same is final, therefore, for the purpose of nature and character of the possession of the // 10 // rented premises of defendant-respondent, can be ascertained from it and there cannot be any dispute that the defendant- respondent is in possession of the land in dispute as a tenant. Therefore, it was proved from oral as well as documentary evidence that the defendant-respondent Madan Lal took the disputed land on monthly rent of Rs.5.50p. per month, from Raj Bahadur for nine months and got possession in the capacity of tenant and paid Rs.10/- towards rent and the defendant-respondent Madan Lal executed rent-note dated 17.11.1957 (Exhibit-1) and signed it. He, therefore, contended that the courts below committed serious illegality in deciding issue no.1 in favour of the defendant-respondent and wrongly dismissed the suit for eviction of the tenant filed by the plaintiff-appellant. Shri Mehta further contended that the lower appellate court has mainly decided issue no.1 against the plaintiff-appellant only on the basis of discrepancy in the description/identity of the rented property whereas there was no discrepancy in it. He contended that the identity of the rented premises was fully established and proved from the pleadings as well as the evidence of the plaintiff- appellant and if there was some minor variance in the pleading and evidence in respect of identity of the rented property, then it could not have been a ground for recording a finding on issue no.1 against the plaintiff- appellant and the suit of the plaintiff-appellant could not have been dismissed on such technical ground particularly even as per the finding of the courts below it was proved // 11 // that the defendant-respondent Madan Lal was tenant and he was not the owner and he does not become owner of the rented land by way of adverse possession. Admittedly, the defendant-respondent Madan Lal was not having any title over the land in dispute whereas from the statements of the plaintiff-appellant’s witnesses it was clear that the plaintiff was the owner and the landlord also of the land in dispute. Shri Mehta, in support of his contention that Exhibit-1 is admissible in evidence for collateral purpose, referred following decisions:- 1. Kesa Vs. Ganesh & Others – 1981 (2) R.C.J. 580 2. Mattapalli Chelamayya Vs. Mattapalli Venkataratnam – AIR 1972 SC 1121 3. Lachhmi Narain Vs. Kalyan – AIR 1960 Rajasthan 1 (Full Bench) 4. Kewalchand Vs. Smt. Phoolabai – 1976 (3) WLN (UC) 265 (Division Bench) 5. Central Bank of India Vs. Govind Narain – AIR 1971 Rajasthan 306 (Division Bench) 6. S. Amar Singh v. Surinder Kaur – AIR 1975 Madhya Pradesh 230 (Full Bench) Shri Mehta, learned senior counsel for the plaintiff-appellant, also referred latest decision of the Hon’ble Supreme Court in the case of Bondar Singh Vs. Nihal Singh (2003) 4 SCC 161, wherein the disputed document was // 12 // unstamped and unregistered and the Hon’ble Supreme Court took a view that it is admissible in evidence for collateral purpose. Shri Mehta further contended that the courts below have committed a serious illegality in converting the present suit for eviction into a suit for title of a third person and contended that the same was not admissible in law in view of the judgment of the Hon’ble Supreme Court in the case of Bhogadi Kannababu & Others Vs. Vuggina Pydamma & Others (2006) 5 SCC 532. He also contended that execution of rent-note (Exhibit-1) was proved from the admission of DW-1 Madan Lal, the defendant himself, and it is settled that admission is the best evidence as held by Hon’ble the Supreme Court in the case of Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi & Others, AIR 1960 SC 100, therefore, the rent-note (Exhibit-1) ought to have been relied upon in favour of the plaintiff while deciding issue no.1 and other issues. He also contended that even if the rent-note (Exhibit-1) was not proved then the tenancy and other factors could have been proved by oral evidence as held by this Court in the case of Banarsilal Vs. Shri Bhagwan, 1955 RLW 129. He also contended that both the courts below wrongly considered one factor that rent was not paid by the defendant-respondent, therefore, disputed property was not given on rent, whereas, as per the evidence, it is clear that Rs.10/- was paid towards the rent and in alternative he contended that even if the rent was not paid by tenant for rented premises then it cannot // 13 // be said that there was no tenancy as held by this court in Uda Ram Vs. Tej Karan – AIR 1975 Rajasthan 147. Shri Mehta further contended that the defendant- respondent has raised inconsistent pleas in written statement. He has taken a plea that he himself is the owner of the disputed land; secondly he said that Devi Prasad is the owner of the disputed land, thirdly he claims that he has acquired adverse possession over the land in dispute. He contended that ultimately only one plea should have been proved by defendant by adducing evidence and not all the pleas and, in support of his case, he referred the decisions in the cases of C. Mohammed Vs. Ananthachari – AIR 1988 Kerala 298 and Roop Singh (Dead) through LRs. Vs. Ram Singh (Dead) through LRs. – JT 2000 (3) SC 474. He also submitted that when a person is claiming adverse possession then from this fact itself it is clear that he is not the owner and some other person is the owner of the disputed land. Therefore, the defendant has wrongly taken a plea that he himself is the owner of the land in dispute and in this connection he referred to the decision in the case of P. Periasami v. P. Periathambi – (1995) 6 SCC 523. He lastly contended that justice has to be done in between the parties and even if there is some lack of evidence then the same should not come in the way of the court while administering the justice in between the parties and in this connection he referred to a decision of the Hon’ble Supreme Court in Kewal Chand Mimani v. S.K. Sen – (2001) 6 SCC 512. He, therefore, contended that the finding of the // 14 // courts below in respect of issue no.1 is absolutely illegal and perverse and based on misreading of evidence and the same is liable to be set aside by the court in second appeal. On the other hand, Shri B.L. Mandhana, learned counsel for the defendant-respondent, contended that so far as the question no.1 formulated by this court on 8.10.1985, relating to denial of title, is concerned there was no need to formulate such question as the finding of issue no.10 relating to adverse possession has been given against the defendant-respondent by the first appellate court and he has not filed any cross-objection in this regard, therefore, there was no need to frame question no.1. So far as question no.2 formulated by this court on 8.10.1985 whether the lease-deed can be used as rent-note, he contended that the same cannot be used as rent-note. He contended that what is the lease, has been considered by this court in the case of Madan Lal Vs. Noor Mohamad – 1968 RLW 334 and contended that the rent-note (Exhibit-1) is signed by both the parties, therefore, it is lease and it cannot be used as rent-note. He further contended that if Exhibit-1 is lease then as per Sections 35 and 36 of the Indian Stamp Act, 1899, it ought to have been written on proper stamps and as per Section 17 of the Registration Act, 1908 it was to be registered compulsorily and it is not in dispute that the rent-note (Exhibit-1) is not on proper stamp and it is unregistered, therefore, the same cannot be admitted in evidence, and in this connection he // 15 // referred the decision of this court in the case of Banwarilal Sharma Vs. Ram Swaroop – 1974 RLW 125 and the decision of the Hon’ble Supreme Court in the case of Jupudi Kesava Rao Vs. Pulavarthi Venkata Subbarao & Others – AIR 1971 SC 1070. He also contended that the rent-note (Exhibit-1) is only a photocopy and the original has not been produced in the court. He referred Section 2 of the Indian Stamp Act, 1899, wherein ‘instrument’ has been defined and original document is required to be produced. He also referred Section 91 of the Evidence Act and contended that secondary evidence cannot be allowed to be filed and in this connection he referred to the following decisions:- 1. Sawa Vs. Kuka – 1951 RLW 80 2. Champalal Vs. Pannalal – 1951 RLW 258 3. Moolchand v. Lachman – AIR 1958 Rajasthan 72 Shri Mandhana also contended that this is a case wherein Raj Bahadur was not the owner of the land in dispute and at the most he could have been treated as landlord on the basis of rent-note (Exhibit-1) but a landlord cannot transfer tenancy right by way of registered sale-deed and only the right of ownership can be transferred and in this connection he referred Section 54 of the Transfer of Property Act, 1882. He also referred to the decision in the case of Sheela Vs. Firm Prahlad Rai Prem Prakash – AIR 2002 SC 1264 to make a distinction in // 16 // between the landlord and the owner of the property. He also contended that the defendant did not take any inconsistent plea in the written statement and the same were only alternative pleas which can always be taken. I have considered the submissions of the learned counsel for both the parties and minutely scanned the impugned judgments passed by both the courts below as well as the decisions cited by both the parties during the course of arguments. Before discussing the finding of both the courts below for the purpose of adjudicating the substantial questions of law formulated in the present case I would like to discuss the case laws cited by both the parties on the formulated substantial questions of law. In Kesa Vs. Ganesh & Others – 1981 (2) R.C.J. 580, this Court held that the document being unregistered, is inadmissible in evidence inasmuch as the landlord was not entitled to get a decree for payment of rent but the document could be looked into to show the nature and character of the possession of the tenant and to establish the relationship of landlord and tenant. In M. Chelamayya v. M. Venkataratnam – AIR 1972 SC 1121, the Hon’ble Supreme Court considered the provisions of Section 17 and proviso to Section 49 of the Registration Act, 1908, and held that the document cannot be received as evidence of any transaction affecting such property. If under the