Decided on February 05,1955

BHAGWANDAS Respondents


Dixit, J. - (1.) THIS revision petition arises out of the Plaintiff -non -applicant's suit for the possession of a house on the allegation that the house in question belongs to the temple of Shree Kunjbihari and the Defendant was allowed to use and occupy it on payment of compensation; that the Defendant is not willing to pay an enhanced amount of compensation. The defence is that the house was mortgaged by Lalli' and Bala Baldeo with the Defendant's ancestors some sixty -five years back and that the mortgage not having been redeemed, the Defendants have become the owners of the property. Bv . an order dated 29 -1 -1950 the learned trial Judgar refused to admit in evidence mortgage deed on which the applicants relied as the deed was not stamped and was also unregistered. The applicants filed a revision petition No. 34 of 1950 challenging the correctness of the above order of the trial Judge. I dismissed the revision petition on the ground that the order could, not be revised under Section 115, Code of Civil Procedure as no question of jurisdiction was involved in the order of trial Court refusing to admit in evidence the deed. Thereafter the applicants paid the stamp and penalty on the deed and prayed to the Court that the deed be admitted and they be allowed' to prove it. The applicants also made a prayer For requisitioning the records of certain judicial, proceedings. These prayers were refused by the lower Courts. The applicants have now again come up in revision to this Court.
(2.) MR . Bhagwandas Gupta learned Counsel for the applicants urged that under the law in force at the time of the execution of the document no registration was necessary; that even if it was, necessary and the document was not registered, it .could be used in evidence for collateral purposes and for proving the nature of the applicant's possession of the property and that it, could be used for the purpose of a defence under the doctrine of part performance; and that, therefore the trial Judge erred in preventing the applicants from proving the execution of the document and tendering it in evidence. It was also said that the document being very old such evidence as is now available to prove the execution thereof and its use in certain ' Judicial' proceedings held in Samvat 1964 may not be available if some years hence the appellate Court setting aside the decision of the trial Court allows the applicants to produce evidence to prove the document. Ordinarily I do not interfere in revision with' orders passed by the trial Court In regard to admission and exclusion of evidence. But in the present case considerable confusion seems to have. been caused in the matter of the evidence the .''applicants wish to lead by the total Inability of the "trial Judge and of the Counsel who appeared in the lower Court on behalf of the applicants, appreciate the correct legal principles bearing the matter. 'The trial Judge rejected the prayer of the applicants for being allowed to tender in evidence the deed after paying the requisite stamp and penalty on the ground that the question of the admissibility of the document having been decided on 29 -1 -1950 could not be opened again. In taking this view the trial Court failed to note the difference between inadmissibility of a document for want of proper time and its inadmissibility because of non -registration. No doubt a document which is required to be stamped if not stamped is not admissible for any, purpose. But if on payment of the proper stamp and the penalty the document can be admitted, then the question arises whether because of its non -registration it can be used for purposes other than for enforcing or maintaining, any right, title or interest to or in immovable property or whether it can be relied upon tonrove the nature of, possession and to defend the. possession under the doctrine of part performance. This question has to be answered with reference to the provisions of the law under which the trial Court held on 29 -1 -1950 that the document was not admissible because it was not registered. That finding cannot be taken as a bar to the determination of the question ' whether the mortgage deed is admissible for collateral purposes or to support a plea of part performance. The trial Court was therefore bound to consider the question of the admissibility of the document for the above purpose and the proper time for raising and determining the question as to' the admissibility of the deed could have been when the applicants during the course of the examination of their witnesses had sought to tender in the document for purposes not prohibited by Section 91, Evidence Act or the law of registration governing the deed. The applicants were also not justified in taking up the attitude that the , trial Court should first decide, in abstract the question of admissibility of the document and then if the document was held admissible' for certain purposes then they would produce their, evidence. As to the prayer of the applicants about1 the summoning, of certain judicial records, I think the procedure is unwarranted. The applicants, should Ale certified copies ,of those documents , which form a part of the record and on which they rely. They must' then prove them according to the provisions of the Evidence Act. For this purpose they can no doubt ask the Court to summon the record of the proceedings. But they cannot by merely asking the Court to get the record, have it exhibited in the case.
(3.) IN my opinion for proper decision of the suit, it is essential that the applicants should be given Anr. opportunity to produce their evidence. The trial Judge shall accordingly record such evidence as the applicants may adduce and determine the question of the admissibility of the deed in the light of this order. The delay and the confusion In the matter of the applicants' evidence has been mainly due to their own default. In these circumstances I think they should be directed to pay to the non -applicant costs of this revision petition. Order, accordingly.;

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