M.L.Bhat - (1.) THIS writ petition is filed against the judgment and decree of civil court and arises out of suit No. 149 of 1966 which was filed by the deceased- Kalloo Ram for perpetual injunction against the respondents No. 3 & 4. Kalloo Ram is said to have died during the pendency of revision before respondent No. 1. Petitioners No. 1 to 6 are his heirs and legal representatives whereas, petitioners No. 7 and 8 art transferees from said Kallo Ram under a registered sale deed.
(2.) KALLOO Ram's case was that he was residing in the suit property. However, the roof of the room of the house had fallen down before the institution of the suit, therefore he shifted into another house. The house originally is said to have belonged to one Jia Lal, meternal uncle of the plaintiff. The defendants wanted to dispossess him forcibly from the house. His alternative plea was that even if he was treated as a tenant he could not be ejected forcibly. The respondents denied the title and possession of the plaintiff. Respondent No. 4 is said to have sold the said house to the respondent No. 3. A portion of the land was under the possession of the plaintiff as tenant over which he had built a room which fell down and the plaintiff had abandoned it and he was not in possession thereafter now. The respondent No. 4 has alleged that the plaintiff was his tenant being heir of Jia Lal but he had abandoned the land, therefore, he transferred the said land in favour of respondent No.3. The trial court decreed the suit holding KALLOO Ram as owner of the property which ownership according to the trial court was acquired by KALLOO Ram by long, uninterrupted and continuous possession over the suit property. The adverse possession of KALLOO Ram ever the suit property was held to have matured into ownership of the plaintiff KALLOO Ram. The appeal was filed against the judgment of the respondent No. 2 which was heard by respondent No. 1 The, appeal was dismissed with an observation that it would be open for the Contesting respondents to eject the plaintiff from the premises in the suit according to law. The appellate court held that the plaintiff was a tenant in . possession of the disputed premises, therefore, it could not be ejected from the suit property otherwise, than in accordance with law. The present writ petition is filed against the finding of the appellate court holding that the petitioner's predecessor Kalloo Sam was a tenant of the Jand and respondents were free to eject him in accordance with law. Learned counsel for the petitioner has submitted that finding of the appellate court with regard to Kalloo Ram being tenant of the suit property is bad and is based on no evidence. The finding with respect to tenancy of Kalloo Ram over the said land is liable to be quashed. In fact plaintiff Kalloo Ram bad claimed the suit property, through Jia Lal. It was alleged in the plaint that Jia Lal had no issue, therefore, plaintiff as his only relation was entitled to remain in possession of the suit land but during the trial it transpires that Jia Lai had sons and he was not issueless. Therefore, plaintiff Kalloo Ram could not claim the suit land through Jial Lal in presence of Jia Lal's heirs. The 1st appellate court has relied on a rent note in which Jia Lal had agreed to -pay rent to the respondent No. 4 and his predecessors who were admitted to be owners of the land. The 1st appellate court has found that though the rent note was unregistered yet it could be received in evidence for collateral purposes. It seems to have taken note of principles underlying the Registration Act which prescribes a document which creates any right or title in immovable properties to be compulsorily registerable . If it is not registered, it cannot be received in evidence. However, an unregistered document is held to be admissible not for proving the interest right or title of the property mentioned in the document but for collateral purposes only. It is submitted by the 1earned counsel for the petitioner that document in question is bilateral document, therefore, it was compulsorily registerable as it creates interest in the immovable property by creating lease with respect to immovable property. There was nothing collateral for which the document could be used. However, it is stated by the other side that tenancy of Jia Lal is independently proved from the statements of witnesses and from the revenue record. The rent note dated 13-8-31 only refers to an admission of Jia Lal in respect of his status as tenant of the suit premises. He has acknowledged his tenancy rights by this document. The document itself does not create lease or tenancy.
(3.) HEARD learned counsel and considered the record also. The plaintiff Kalloo Ram had asserted his right as owner. He bases his ownership rights on adverse possession though the expression adverse possession is not used in the plaint but from reading the plaint it appears that Kalloo Ram wanted to assert ownership by prescription. His possessary rights had matured into ownership because he was not ejected from the suit premises within the period of limitation, therefore, rights of true owner in the suit land had extinguished. He has led some evidence that he is in possession of the suit property and the trial court accepted this version but the appellate court on reassessment of the evidence has held that Kalloo Ram's adverse possession over the suit property was not proved. The plaintiff has also alternatively stated that even as tenant he cannot be ejected from the suit premises otherwise, than in accordance with law. It was contended by the learned counsel for the respondent that plaintiff's own case vas that he was a tenant of the suit property in the alternative, therefore, he cannot now turn around and say that he is not a tenant. Learned counsel for the petitioner has submitted that the plaint though loosely drafted could not deprieve the petitioner of his right of ownership over the land because the document relied upon by the respondents is inadmissible in evidence, therefore, plaintiff could not be held to be tenant of the suit property. It is submitted that after the trial of the suit courts below have to decide the question of plaintiff's rights over the suit property on the basis of evidence and not depend on the isolated pleas of the plaint which cannot be held to be an admission by the plaintiff that he was a tenant of the suit land. This Court is not an appellate court sitting over the judgments of courts below. This Court is exercising its writ jurisdiction under Article 226 of the Constitution of India. It cannot re-evaluate the evidence or make fresh appraisal of the evidence to suit any of the parties. This Court is to consider only whether there is any error apparent on the facts of the record and, if so, whether the said error needs to be corrected. The observations of the appellate court with regard to petitioners predecessors' interest Kalloo Ram being a tenant of the suit property seems to have been arrived at after appreciation of the evidence and the documents before of the appellate court. That evidence was to be read along with the averments made in the plaint. In the plaint it was asserted that Kalloo Ram was owner because he had been in possession of the suit property for a long time but in the alternative it was pleaded that even as tenant he could not be ejected from the suit property except in accordance with law. Copy of the plaint had been placed on record alongwith the counter affidavit by the learned counsel for the respondents No. 3 and 4. Para 6-aa of the plaint, which is in Hindi, makes it abundantly clear that the plaintiff Kalloo Ram had stated that if it is held that plaintiff was tenant of the land underneath the house, he in that case also cannot be evicted forcibly from the said land. Para 3 of the plaint would make it clear that plaintiff had asserted his claim through Jia Lal. It is stated that Jia Lal had no heir on his own, therefore, plaintiff has become the sole owner of the house. The said Jia Lal is said to be maternal uncle of the plaintiff, therefore, the 1st appellate court was right in saying that if Jia Lal was tenant, plaintiff cannot claim to be owner of the suit property because rights of Jia Lal according to the plaint had devolved upon him.;