' The dispute in this case relates to agricultural land measuring 162 acres situated in Deh Behram Bari, Taluka and District Sanghar. This land belongs to respondent No, 1 Mst. Aqlan. Thee applicants claim that the aforesaid land was leased out to them by respondent No, 1 by an agreement in writing dated 5-6-1976 for a period of five years commencing from 1979 at the rate of Rs, 16,200 per year. According to the allegation of the applicants respondent No, 1 received at the time of the agreement the lease money for the first two years. It is common ground that the land in dispute was on lease with one Niaz Ahmed Wasan upto Rabi 1978-79. Accordingly it was stipulated in the agreement between the parties that the possession of the land will be handed over with effect from Kharif 1979-80. However, according to the allegation of the applicants, possession of the "vacant land" meaning thereby the land which was unoccupied by cultivation of the previous lessee, was handed over to the applicants in the last week of December 1978. In pursuance of the aforesaid the applicants advanced a total sum of Rs, 45,000 as taccavi to the haris who started preparations for cultivation for the Kharif crop. But sometime thereafter respondent No, 2 came upon the land and declaring that he had taken the lease of the land from respondent No, 1 through a Registered Lease Deed, demanded the applicants to vacate the possession of the land. The applicants thereupon approached respondent No, 1 for registration of their Lease Deed but she refused to do so. They then learnt that on 2-1-1979 respondent No, 1 had executed and registered a Lease Deed in favour of respondent No, 2 through her attorney respondent No, 3 in respect of 117-12 acres out of the disputed land at the rate of Rs, 23,400 per year for five years. The applicants there upon filed Suit No, 27/1979 against the respondents in the Court of Senior Civil Judge, Sanghar for specific performance, declaration and permanent injunction. By way of interlocutory relief the applicants sought the relief of temporary injunction to restrain "the defendant No, 2 from interfering with the possession of the plaintiffs over the suit land by himself or through his agents in any manner"
2. The respondents appeared and resisted the application for temporary injunction. It was denied that respondent No, 1 had given any lease to the applicants and that the agreement was a forged document. The allegation of possession on the part of the applicants was also repudiated. It was asserted that respondent No, 2 is the rightful lessee in respect of 117-12 acres under a Registered Lease Deed dated 2-1-1979 and was already in possession of the vacant portion of the land. As regards the remaining about 45 acres of land the case of the respondents was that the same is in possession of respondent No, 3 on behalf of respondent No,
1. On 25-3-1979 the applicants filed further affidavits of seven persons said to be haris on the land who deposed that the vacant portion of the suit land was in possession of the applicants since December 1978, and that each one of them has been paid a sum of Rs, 3,000 to prepare the land for cultivation.
3. The learned Senior Civil Judge after hearing the counsel for the parties and considering the affidavits and documents on record, came to the conclusion that the document relied upon by the applicants being intended to operate as a present demise of land could not be looked into as it was insufficiently stamped and unregistered. As compared to that the document under which respondent No, 2 claimed rights was a registered one and, therefore, has to be given effect to until the applicants proved their case. As to the possession, learned Civil Judge referring to the registered document came to the conclusion that the possession of the vacant portion of the land seemed to be with respondent No,
2. In this view of the matter the Senior Civil Judge by his order dated 2-4-1979 refused to grant temporary injunction prayed for. The appeal filed by the applicants before the District Judge, Sanghar met with the same fate and was dismissed on 23-5- 1979. The learned District Judge appears to have examined the case more elaborately in the light of the material on record. He has taken the view that the document relied upon by the applicants being a Lease Deed was required to be registered within the prescribed period of months of its execution and in absence of such registration it was invalid in law. He has also come , to the conclusion that the applicants were not in possession of the land. Before him the applicants had further produced a notice dated 5-5-1979 issued by the Mukhtiarkar, Sanghar to applicant Muhammad Jumman directing him to give up his so-called unlawful possession. Similarly the respondent No, 1 had produced a public notice published in a newspaper dated 16-11-1978 complaining that her relations were against her and .Warning the public to be aware of any false transactions of transfer or lease that may be entered into by them. The applicants are aggrieved by the refusal of the relief of temporary injunction by the Courts below and have come up in revision in this Court.
4. Mr. A. A. Fazeel, learned counsel appearing for the applicants contended that the applicants have made out a prima facie case for grant of interim relief and the Courts below were in error to withhold such relief. He urged that notwithstanding the fact that the document in favour of the applicants was an unregistered one, it could be looked into for collateral purposes by virtue of section 49 of the Registration Act in order to determine the relationship between the parties and the nature of the applicant's possession. He has cited several authorities in support of the submission. On the other hand; Mr. A. Q. Halepota, learned counsel appearing for respondents 1 and 3 submitted that a distinction has to be drawn in this behalf, between the character and nature of the possession and the character and nature of the transaction. An unregistered document, according to him, is not admissible to prove the character and nature of the transaction, and, therefore, the , applicants were not entitled to rely upon the document to establish the grant of lease in their favour. In my opinion, for the present purposes, it is not necessary to decide this question. Obviously the applicants have brought this suit relying upon their rights under section 27- A of the Specific Relief Act and, therefore, even as against a registered document, an unregistered document through which they claim would take effect as laid down by the second proviso to section 50 of the Registration Act provided they have taken possession of the property in part performance of the contract. The question, therefore, that arises for consideration is whether the applicants were put in possession of the land as alleged by them in pursuance of the terms of the contract.
5. In this behalf learned counsel for the applicants placed great reliance on the affidavits of the seven haris. He submitted that there is no dispute between the parties that these persons are really the sitting haris on the land as four of them are said to have executed kabuliats and receipts for money in favour of respondent No,
2. Grievance was made by the counsel that the learned District Judge discarded this important evidence from consideration without cogent reasons. As already pointed out the evidence of these persons contained in their affidavits in identical terms in material part was as under :- "That the vacant portion of the suit land is in possession of Muhammad Jumman, lessee since last week of December 1978."
' The learned counsel for the respondents objected to the consideration of these affidavits on the ground that they were additional affidavits filed by the applicants without permission of the Court contrary to rule 68 of the Civil Court Rules and were, therefore, rightly excluded from consideration.
Be that as it may, the question is whether the affidavits of the haris in any way advance the case of the applicants to establish prima facie case of possession. In this regard my attention was drawn to the Lease Agreement dated 5-6-1968 which does not contain any recital to the effect that possession of any portion of the land was handed over. Obviously the agreement having been executed nearly three years prior to the commencement of the lease could not contain such a recital. As already pointed out the agreement stipulated that possession would be handed over to the applicants with effect from Kharif 1979-80. According to the Revenue Standing Order No, iI the Rabi Crop Season expires on 31st March and the Kharif Crop Season commences from 1st April every year. Therefore, the document dated 5-6-1976 is of no assistance for the purpose of showing prima facie that -possession was handed over to the applicants in December 1978. No other evidence of transfer of possession has been given except the oral statement of the abovesaid haris. In the plaint the plea of the applicants in this behalf is contained in paragraph 4 which rays: "That the possession of the vacant land was handed over to the plaintiffs in the last week of December 1978". Neither in the plaint nor in the affidavits of the haris is there any mention of the person who handed over the possession to the applicants. Admittedly the applicants are not in possession of the entire suit land. Their claim is that they are in possession of unspecified portion of the land which was lying vacant during the currency of the previous lease. Even assuming the applicants are in possession taken over by them in any other manner, it prima fade appears to me that until the applicants establish that they were put in possession by respondent No, 1 in pursuance of the agreement of lease, their possession cannot enure in terms of section 27-A of the Specific Relief Act. As already pointed out it is not the case of the applicants that they are in possession of the entire land. As regards the notice dated 5-5-1979 from the Mukhtiarkar, Sanghar there is no doubt that the same mentions that applicant Muhammad Jumman was directed to give up his unlawful possession. Once again this notice does not mention the particulars and the description of the add said to be in possession of the said applicant. The allegation of the respondents is that this notice was an inspired document managed in collusion with the Mukhtiarkar. On the other hand, the applicants contend that it was issued in pursuance of an application of the same date addressed by respondent No, 3 and respondent No, I to the Deputy Commissioner, Sanghar, but prima fade it was rightly pointed out that the contents of this application have no co-relation with the notice relied upon. Nowhere in this application it has been admitted that the aforesaid applicant is in possession of any portion of the land in dispute. On the contrary, it refers to the decision of the Court in favour of the respondents apparently on the injunction application of the applicants and requests the. Deputy Commissioner to take action against the man of the applicants who were trying to interfere with the ploughing and irrigation of the land by the haris of the respondents. For the present purposes, therefore, these documents are of no value to the applicants.
6. On the other. Hand, the registered Lease Deed in favour of respondent No, 2 dated 2-1-1979 clearly recites that possession of the unoccupied land was handed over to respondent No, 2 and the remaining land which was under cultivation of the existing lessee would be handed over to him upon expiry of the period of the lease. Mr. Fazeel challenged the validity of this document on the ground that it pertained to land situate in District Sanghar whereas it was registered in violation of section 28 of the Registration Act by the Sub-Registrar, Mirpurkhas. Mr. Halepota pointed out that the document contained a reference to a plot of land in Village Laung Wasan, Deh 96, Taluka Mirparkhas and, therefore, in terms of section 28 the Sub-Registrar, Mirpurkhas had jurisdiction to receive and register the document. Reliance was placed on A 1 R 1920 Mad. 596 and AIR 1946 Cal.
465. The point cannot, therefore, be pursued further for the present purposes specially in view of subsection (2) of section 28 of the Registration Act which seems to save the validity of the registration of a document even if the property which is included in the documents for the purpose of giving jurisdiction to a particular Sub-Registrar did not exist or was fictitious or insignificant or was not intended to be conveyed.
7. Mr. Halepota assailed the genuineness of the Lease Agreement relied upon by the applicants upon the circumstances appearing in the document itself. He pointed out that the document purports to have been executed by respondent No, 1 who is a pardanashin' lady living in village Dino Wasan, Taluka Sanghar. The document appears to be a full-fledged lease deed and its recitals contain an admission on the part of the lessor that a sum of Rs, 34,400 being the lease money for two years was paid in advance. The stamp paper on which the document is written is shown to have been purchased by respondent No, 1 through Photo Wasan, applicant No, 2 from Allah Bachaio Khan, Stamp Vendor, Perumal. It was argued that despite these circumstances the document was not presented before the Sub-Registrar, Sanghar when the lady executant was present in Sanghar. However, at this stage it is not necessary to comment on this submission as it may prejudice one or the other party. However, the fact remains that notwithstanding the denial of the execution of this document no attempt was made to file the affidavits of the attesting witnesses or of Mr. Mukhtar Ahmed Bhatti, Advocate and Notary Public who attested the execution of the document by respondent No, 1.
8. Mr. Fazeel lastly contended that the impugned orders are bad in law as the request of the applicants for inspection of the land to determine as to who was in possession thereof submitted under Order XVIII, rule 18, C. P. C. Was not considered by the trial Court and was rejected for uncogent reasons by the Appellate Court. I find no substance in this contention. It is well settled that a Court can only decide a matter on the basis of evidence on record and not on its views or impressions of inspection. Inspection is not a substitute for evidence and in the matter of possession of agricultural land such inspection will be of no value. And enquiry conducted at the site by a Court would obviously be improper and contrary to law unless the parties agree to be bound by such procedure.
9. In the circumstances mentioned above it appears to me that the Courts below were justified on the materials placed before them to arrive at the tentative findings on the basis of which they refused the relief oft temporary injunction and no interference is called for in the revisional1 jurisdiction of this Court. It was held in Muhammad Umer Beg v. Sultan Mahmood Khan (1) that the limited jurisdiction in revision under section 115, C. P. C. Is meant primarily for correcting errors made by the subordinate Courts in the exercise of their jurisdiction and not those which are made in their discretion, unless the discre tion is found to have been exercised fancifully or arbitrarily.
From the foregoing discussion, I am of the view that the Subordinate Courts have exercised their discretion on sound principles of law on the materials placed before them.
10. The result is that this revision stands dismissed with no order as to costs.
(1) PLD 1970 SC 13.9