JUDGMENT
Prafulla C. Pant, J.
1. This second appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and order dated 10.5.1978, passed by learned Civil Judge, Almora, in Civil Appeal No. 7 of 1973, whereby the trial court’s judgment and order dated 12.3.1973, passed by Munsif Ranikhet, in Civil suit No. 45 of 1963, was set aside and said suit is decreed.
2. Heard learned Counsel for the parties and perused the papers on record.
3. Brief facts of the case are that a suit No. 45 of 1963 as instituted by plaintiff Govind Singh for recovery of arrears of rent and mesne profits and also for ejectment of defendant No. 2 from the house in suit. Plaintiffs case is that the parties are residents of village Sajgori, Patti Malla Silore, Tehsil Ranikhet, District Almora. The plaintiff Govind Singh and defendant Nos. 2 and 3 Anoop Singh and Kundan Singh are the joint owners of the house in suit situated in plot No. 652 in the aforesaid village. Defendant No. 1 is tenant in the house of the aforesaid three, on rent at the rate of Rs. 20 per month. It is alleged in the plaint that the defendant No. 1 did not pay rent since March, 1960 and denied the title of the landlords, as such, he was served with a notice of demand of arrears of rent and also for ejectment from the house in suit. However, no rent was paid in response to said notice, as such, the tenancy of defendant No. 1 stood terminated and thereafter the suit was filed.
4. Defendant No. 1 (appellant in present case) contested the suit before the trial court by filing the written statement in which it is pleaded that plaintiff and defendant Nos. 2 and 3 are not the owners of the house in suit, nor are they the landlords. It is further pleaded by the contesting defendant that that house was constructed by Bachche Singh, father of contesting defendant about 32 years before filing of the present suit. It is alleged that an exchange deed was entered between Ba:hche Singh, father of the defendart and Bagh Singh and Nek Singh, sons of Chandan Singh Kanyal on one side and Keshar Singh, Sobhan Singh and brother of the plaintiff, on the other hand. By way of said exchange deed a plot was given to the plaintiff’s father on which the house in question was constructed by him (father of the defendant No. 1). It is further pleaded that even otherwise, the defendant No. 1 has matured his title over the house in suit by virtue of adverse possession.
5. Other defendants filed their written statements but did not contest the suit.
6. The trial court after going through the pleadings of the parties framed following issues in the suit:
1. Whether the relationship of landlord and tenant exists between the parties?
2. Whether the defendant No. 1 is in arrears of rent, if so, its extent?
3. To what relief, if any, are the plaintiff entitled?
4. Whether the plaintiff is the owner of the house in suit?
5. Whether the defendant No. 1 has become owner of the disputed house through the alleged exchange deed?
6. Whether defendant No. 1 is liable to ejectment from the house in suit as alleged in para 5 of the plaint?
7. Whether the defendant No. 1 has become owner of the house in suit by maturing his title by adverse possession?
8. Whether the suit is bad for non-joinder of the persons mentioned in the additional written statement, paras 15 and 16?
7. After recording the evidence of the parties and hearing them, the trial court found that there existed no relationship of landlord and tenant between the parties. It further found that the defendant No. 1 is not in arrears of rent as he was not a tenant in the house in question. The trial court further found that the plaintiff is not the owner or the landlord of the house in suit. It further found that defendant is the owner of the house which was constructed on the land transferred through the exchange deed. In alternative it found that even otherwise the defendant No. 1 had matured his title by adverse possession over the property in suit. The trial court further found that defendant No. 1 is not liable to ejectment from the house in suit. With these findings, the trial court dismissed the suit on 12.3.1973. Aggrieved by said judgment and decree, plaintiff Govind Singh preferred Civil Appeal No. 7 of 1973 before the lower appellate court and after hearing the parties, the lower appellate court allowed the appeal, set aside the judgment and decree passed by the trial court and decreed the suit for recovery of arrears of rent and mesne profits and also for ejectment of defendant No. 1. Hence, this second appeal is filed by defendant No. 1 (appellant in present case) before the Allahabad High Court in the year 1978, from where it has been received by transfer to this Court, under Section 35 of the U.P. Re-organization Act, 2000, for its disposal.
8. The Allahabad High Court while admitting this appeal on 9.8.1978 did not frame any substantial question of law, formally, but it had mentioned that there is substantial question of law involved in the appeal. This Court, after going through the impugned Judgment and decree, found following substantial question of law on which the parties submitted their arguments:
Whether, the exchange deed dated 21.4.1931 (Ext. A-4), which was a document more than 30 years old, was illegally ignored by the lower appellate court in violation of spirit of Section 90 of Indian Evidence Act, 1872, and has the lower appellate court erred in law in not reading the said unregistered exchange deed of the property, which was of the value of less than rupees one hundred, as alleged by defendant No. 1/Appellant?
Answer to substantial question of law:
9. It is pertinent to mention here the relevant provision contained in Sub-section (1) of Section 17 of the Registration Act, 1908, the same is reproduced hereunder:
17. Document of which registration is compulsory-
(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date of which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:
(a) ….
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, 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;
(c) ….
(d) ….
(e) ….
10. By State amendment for the State of Uttar Pradesh (applicable also to the State of Uttarakhand) vide U.P. Act No. 57 of 1976, an amendment was incorporated in the aforesaid quoted provision wherein it is provided that w.e.f. 1.1.1977, words –‘of the value of one hundred rupees and upwards’ from Clause (b) to Clause (e) were omitted. As such, w.e.f. 1.1.1977, every instrument relating to immovable property whereby the interest is transferred was required to be registered. However, prior to said amendment it was required only if the value was over rupees one hundred. The present document in question, in the case i.e., exchange deed (Ext. A-4) is dated 21.4.1931, as such, the said document was required to be registered only if the value of property was more than rupees one hundred in the year 1931. Ext. A-4, the exchange deed dated 21.4.1931, is proved on the record by the scribe of the document D.W. 1 Hayat Singh. The term of said document shows that the land in question in which the house in suit is situated was got exchanged by the plaintiffs father. The contesting defendant No. 3 Uchchap Singh has stated on oath before the trial court that value of the property (in exchange deed) in the year 1931 was less than rupees one hundred. He has further stated that the house was got constructed by his father Lachcham Singh. It is relevant to mention here that the land and the house constructed over it is situated in a village of interior area of district Almora. P.W. 1 Govind Singh in his statement nowhere stated that value of land or the one mentioned in exchange deed, in 1931 was more than rupees one hundred. What he has said is that house which stands constructed is of value of Rs. 4,000. The case of defendant No. 1 is that house was got constructed by him. D.W. 2 Fakir has supported the case of defendant No. 1 that house belongs to him. P.W. 2 Hari Shankar, who has adduced in favour of the plaintiff has himself stated that the entries made in the settlement register are not confirmed and its copies cannot be given. As such, in the opinion of this Court, the lower appellate court has commited error of law in ignoring the exchange deed while coming to the conclusion whether the defendant No. 1 is tenant of the plaintiff, or not? The lower appellate court has further erred in law in holding the exchange deed as an unilateral document.
10.1 The lower appellate court has further erred in law in ignoring the provision of Section 90 of Indian Evidence Act, 1872, which reads as under:
90. Prescumption as to documents thirty years old.–Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in a particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed or attested.
Explanation.–Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be: but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
The Explanation applies also to Section 81.
For its application to the State of Uttar Pradesh, the above provision is required to be read with State amendment. The State amendments vide U.P. Act No. 24 of 1954 w.e.f. 30.11.1954 (applicable to the State of Uttarakhand also) provides that words ‘twenty years’ are to be read in place of ‘thirty years’. As such, the document exchange deed (Ext. A-4) was admissible in evidence and the lower appellate court has appreciated the evidence on record ignoring the said fact. In fact, the perusal of the lower court record shows that initially the suit No. 45 of 1963 was dismissed by the trial court on 25.3.1966 by the then Munsif Ranikhet. However, in an appeal against said order, vide order dated 18.7.1968, in Civil Appeal No. 32A of 1966, the case was remanded back to the trial court. The trial court again found that the plaintiff is not entitled to the relief claimed by him as there was no relationship of landlord and tenant, between the parties, which finding is reversed by the lower appelate court ignoring the exchange deed (Ext. A-4). In view of the provisions of Section 17 of the Registration Act, 1908, read with Section 90 of the Indian Evidence Act, 1872, the lower appellate court has committed error of law in ignoring the document i.e., exchange deed, of the year 1931 (Ext.A-4) relating to property of value of less than rupees one hundred which was admissible in evidence.
The substantial question of law is answered, accordingly.
11. For the reasons as discussed above, since, the relationship of landlord and tenant is not proved between the plaintiff and defendant No. 1 and the lower appellate court has wrongly decreed the suit by ignoring the exchange deed (Ext. A-4) dated 21.4.1931, as mentioned above, the judgment and order of the lower appellate court, is liable to be set aside. Therefore, the appeal is allowed. Judgment and order dated 10th May, 1978, passed by Civil Judge, Almora in Civil Appeal No. 7 of 1973, is set aside. The suit No. 45 of 1963 stands dismissed. No order as to costs.
