The contesting defendants have filed this revision petition against the grant ~f decree to the plaintiffs by the appellate Court declaring their entitlement suit land.
2. There are three strains in the pleadings of the plaintiffs .Firstly they rely on Mutation Ni. 314 attested on 25-12-1906 through which their predecessor-in-interest came into possession of the suit land as a mortgagee. This mutation is not being challenged by the petitioners. Secondly, they press in service the unregistered sale-deed allegedly executed between the parties in the year 1912 whereby their predecessor-m-interest purchased the equity of redemption for two-fold purposes; one, that the suit land was duly purchased by their predecessor-in-interest and two, that it has evidentiary value for the nature of transaction between the parties in the year 1906 which would go to rebut the contentions of the defendants that only one of the three co-owners of the suit land mortgaged his share. Thirdly, the plaintiffs' endeavour was, in case their other two pleas were not accepted, to claim their title to the suit land on the basis of adverse possession. For the last plea they would also like this Court to take into consideration the aforesaid unregistered document in order to understand the nature of their possession of the suitand. It may be pointed out at this stage that the Revenue record exhibited before the trial Court consistently showed the possession of the suit land with the plaintiffs since the year 1906.
3. The trial Court granted partial decree in favour of the plaintiffs as well as defendants Nos.2 to 4 to the extent of 1/4th share in the suit Khasra number "by prescription against defendant No.l only", as the same was mortgaged to them more than sixty years ago. However, their prayer for relief No. `bai' relating to the sale of the property to them and `jeem' claiming in the alternative their right to the suit land being in adverse possession was rejected. Both the parties went in appeal and the appeals were disposed of in separate orders but the findings amounted to granting the declaration to the plaintiffs for the entire suit land as prayed for by them on the basis of "prescription" by remaining in possession of the suit land for more than sixty years as mortgagees.
At the same time the learned District Judge, Kohat granted the decree on the basis of an unregistered sale-deed as well. He, however, quite obviously rejected their plea of adverse possession.
4. Mr. K.G. Saber, Advocate, the learned counsel for the petitioners assailed the judgment of the appellate Court on the ground that it has unjustifiably reversed the finding of the trial Court to the effect that the original mortgage mutation of the suit land was attested in the presence of only one of the owners, namely, Zarif Khan and he having 1/4th share to the suit Khasra number could only mortgage his share. The learned counsel argued that even that parcel of land was subsequently redeemed, a plea not accepted by the trial Court. The learned counsel further argued that even if the evidence of the petitioners be ignored that the said 1/4th share in the suit Khasra number was redeemed the appellate Court could not grant the decree to the plaintiffs for the entire suit land.
The learned counsel defended the conclusions of the trial Court in rejecting the unregistered sale- deed, as it did not confer any right on the plaintiffs. He also attacked the finding of the appellate Court with regard to the unregistered sale-- deed, Ex.PW.3/1, which carried the sale of the equity of redemption of the suit land. According to the learned counsel, such document, which was compulsorily registrable under section 17 of the Registration Act, could not create any right in favour of the plaintiffs.
5. There can be no disagreement with the learned counsel for the petitioners when he states that unregistered sale-deed did not confer any right on the plaintiffs to claim any title as owners in the suit property and to that extent the findings of the learned appellate Court are erroneous. The learned counsel cited Habibur Rehman and another v. Mst. Wahdania and others PLD 1984 SC 424 in support of his aforesaid submissions. The Supreme Court in the aforesaid case was mainly concerned with the effect of non-registration of a document which must be registered under section 17 of the Registration Act on the claim of a person deriving his entitlement under the same.
The learned Judges examined the applicability of section 53-A of the Transfer of Property Act to such a transaction. The Supreme Court, however, did not consider the utility of such a document to determine the nature of the possession of a party claiming the same under the said document.
The dictum laid down in the above-cited judgment of the Supreme Court shall, however be kept in view in the discussion which follows.
6. One may straightaway accept the proposition that a co-owner can encumber his share alone of the property and unless there is an express power of agency with him he cannot bind others. But the admitted feature of the case in hand is that the entire suit-land, not only a part of it, came into possession of the plaintiffs as mortgagees. It has been so recorded in the Revenue record, extracts of which have been duly exhibited. Similarly one may not accept the finding of the appellate Court to the extent that the said unregistered sale-deed conferred any right in the suit-land enforceable in a Court of law, but one may agree with the learned District Judge in looking into its contents to understand the nature of the transaction earlier arrived at between the parties and the nature of possession of the plaintiffs of the suit-land thereto. Although the issue of adverse possession was not decided in favour of the plaintiffs by both the forums, yet it cannot be kept out of consideration for the reason that a change in the nature of possession took place in the year 1912 on the basis of the aforesaid sale-deed. The said deed being unregistered may not confer the title enforceable in law yet become instrumental in making the said possession of the plaintiffs of the suit land as adverse to the defendants after the execution of such a document.
7. It has been held time and again, that the Registration Act, "unlike the Transfer of Property Act, strikes only at documents and not at transactions. In the same way the Act does not require that a transaction affecting immovable properties should be carried out by a registered instrument. All that it enacts is that when a document is employed to effectuate any of the transactions specified in section 17 of the Act, such document must be registered, notwithstanding that the transaction is one which the law does not require to be put into writing." (K. Panchapagesa Ayyar and another v.
Kalyanasundaram Ayyar and others AIR 1957 Mad. 472. Section 49 of the Registration Act (XVI of 1908) lays down the effect of non-registration of documents required to be registered by law and makes them inoperative "to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, to or in immovable property...". The proviso in the un amended section to the effect that the said document shall not be admissible in evidence has been done away with. However earlier too it was permissible to use such documents for collateral purposes during the proceedings in a Court of Law. The position which stand today is that such document may be admitted in evidence but nor for the purpose of operating to create any right, title or interest as quoted above.
8. The genuineness of the sale-deed Ex.PW.3/1 was accepted by the appellate Court and the counsel for the respondents before me has not questioned the same. This document, as stated above, being unregistered was rightly pressed into service by the learned District Judge for determining the nature of possession of the plaintiffs prior to the execution of the said document.
The document refers to the earlier transaction of mortgage with its date and parties thereto. The said sale-deed, it may once again be stated, shall however, be ineffective to transfer any title. But the recital in the said deed of the details of the earlier mortgage transaction as borne out by entries in the Revenue record coupled with the possession of the plaintiffs over the entire suit-land shall obviously belie the claim of the defendants that the mortgage was only of 1/4th of the suit land transacted by one of the co-owners.
9. In view of the pleadings and evidence of the parties, the other legitimate use, in the alternative, one could make of the sale-deed is to examine the nature of transaction it evidences. Without creating any legal title in the plaintiffs the unregistered document changed the nature of their possession of the suit-land. If they did not acquire the status of lawful owners they, at least, feigned ownership under the terms of the said document to the knowledge of the defendants since 1912.
Their possession of the suit-land, as such, stretched long after the statutory period of 12 years to create in them title to the suit land. The unregistered document carries consent of mortgagor to allow the mortgagee to hold the land by asserting his ownership. There is no denying the fact that possession of a mortgagee as such cannot undergo any metamorphosis during the subsistence of the mortgage. But if the mortgagee has not attained any lawful title to ownership under an unregistered deed" his assertion of ownership in himself makes his possession adverse to the mortgagor which by prescription may earn a title recognised by law to the feigned ownership for him in the course of 12 years to come." (Cases considered: Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456; Mst. Kirpal Kaur v. Bachan Singh AIR 1958 SC 199; Subramonia Iyar and another v. Kandu and others AIR 1964 Kerala 179; K. Panchapagesa Ayyar and another v.
Kalyanasundaram Ayyar and others AIR 1957 Mad. 472.
10. For the reasons stated above, the decree granted to the plaintiffs by the appellate Court stands and this revision petition is dismissed with no order as to costs.