R.N. Sahay, J.
1. This appeal has been preferred by the plaintiffs against the judgment and decree of the 5th Additional Sessions Judge, Samastipur, dated 21st December, 1983, whereby the decree of the Munsif, Samastipur was reversed and the suit filed by the present appellants was dismissed.
2. The plaintiffs Samir Kumar Prasad Karn and others brought a suit for declaration of their title and confirmation of possession and in the alternative recovery of possession over the suit land measuring 5 kathas 1 dhurs described in Schedule A of the plaint.
3. The declaration was sought on the basis of following averments in the plaint:
(a) Survey plot No. 1292 measuring 2 kathas 6 dhurs appertaining to khata No. 440 originally belonged to one Babuji Jha, who was the recorded tenant of the same. Babuji Jha died issueless leaving behind him two grand nephews Nand Kishore Jha and Bishwanath Jha, who came in possession of the said survey plot No. 1292.
(b) Nandkishore Jha and Bishwanath Jha gave, survey plot No. 1292 in exchange for some other land to one Jaideolal son of Kantkar Lal Das of village Chhatneshwar by means of a registered deed of exchange dated 12.3.1928. The remaining plot Nos. 1246 and 1247, which are also in suit measuring 2 kathas 15 dhurs, originally belonged to Jaideo Lal himself which was recorded in the name of his father and thus Jaideo Lal was in possession over these three plots described above.
(c) In the year 1934, the said Jaideo Lal gave plot No. 1292 in Bharna to the plaintiffs by means of a registered-deed of bharna dated 3.1.1934. In order to redeem that Bharna and to satisfy other financial needs, Jaideo Lal executed another Bharna bond in respect of the same land in favour of the plaintiffs on 12.11.1941 and thereby the previous bharna bond dated 3.4.1934 was redeemed and a note of redemption was noted thereupon and in this way the said plot No. 1292 continued in possession of the plaintiffs through his bharnadar. The said bharna bond dated 12.11.1941 was later on redeemed by Jaideo Lal on 29.6.1947 and in token of that a note of redemption was noted on the said bharna bond and after the redemption the bharna bonds were, made over to the mortgagor Jaideo Lal who also came in possession over the land.
(d) Jaideo Lal as self and guardian of Birendra son of his predecease d son along with the another son Dwarka Lal sold the suit land to the plaintiffs for a valuable consideration of Rs. 400/- by means of a registered deed of sale dated 3.6.1949 and out of the said consideration amount a sum of Rs. 287 was left with the plaintiffs to be paid to one Siyasaran Prasad Sahi of village Pirmahamadpur, District-Muzaffarpur in satisfaction of a loan which was incurred by Jaideo Lal on the basis of a hand note dated 7th March, 1956. The plaintiffs got the aforesaid sale-deed in the name of defendants 6 and 7, who are the Samadhi and son-in-law respectively of Sabilakh Lal. The said sale-deed could not be presented for Registration on that date as it become late and so Jaideo Lal and Dwarka Lal, who were in urgent need of money, requested the plaintiffs to pay the balance amount of Rs. 112 and promised to get the document registered subsequently. The plaintiffs, however, paid the said amount to the executants of the kebala who handed over the unregistered document to the plaintiffs and along with it also handed over the original deed of exchange dated 12.3.1928 and the two redeemed bharna bonds about which a reference has been made above. Because the sale-deed was almost complete and the consideration had also been paid the title over the land in question thus passed to the plaintiffs on 3.6.1949 on which date they were put in possession over the vended land. The plaintiffs also paid the hand note dues to Shri Siyasaran Prasad Sahi, who after making a note of endorsement on the back of the hand note returned this hand note to the plaintiffs.
(e) After a few days of the execution of the sale-deed, the plaintiffs approached the aforesaid Jaideo Lal and Dwarika Lal to get the document registered, but Jaideo Lal who was an old man and Asthama patient went on putting off the matter on the ground of his illness. The plaintiffs grew suspicious and got the document presented for compulsory registration by Srikant Lal, one of their Benamidars. The executants, however, admitted the execution before the Sub-Registrar on 13.12.1949 and the document was thus registered under Section 75 of the Indian Registration Act.
(f) The plaintiffs after having been put in possession of the disputed land amalgamated the name with their homestead lands lying adjacent north of the disputed land and their other lands and put up an Ekchari over a portion of the disputed land which was attached to the extreme southern wall of their residential house. Plaintiffs also constructed abut in a portion of the disputed land and thus the plaintiffs are coming in possession of the same in payment of rent to the Maliks. In the year 1957, the plaintiffs also took up the work of digging a well on the portion of the land in question and in 1958 when the breck work of the well was taken up, the defendants brought a proceeding under Section 144 Cr.P.C. in respect of the land in question. The said proceeding was, however, converted into a proceeding under Section 145, Cr.P.C. and ultimately the land was attached under Section 146, Cr.P.C. and the case was referred to the Civil Court for adjudication on the point of possession. The proceeding was disposed of against the plaintiffs.
(g) During the continuance of that proceeding under Section 145, Cr.P.C. defendant No. 1 Bhuneshwar Lal disclosed, for the first time, that they had acquired the lands in dispute from Jaideo Lai by virtue of a deed of exchange dated 4.6.1949. He further disclosed that, that a deed of exchange had also been executed on 3.6.1949 which was not registered and thus remained inoperative. As regards the deed of exchange, according to the plaintiffs, it is a fraudulent, forged and collusive document and was executed after the execution of the sale-deed in favour of the plaintiffs.
4. The case of the defendant No. 1 in his written statement was as follows:
(a) the alleged sale-deed executed by Jaideo Lal in favour of the plaintiffs on 3.6.1949 was a forged, fabricated and fraudulent document as item was executed much after the execution of the deed of exchange dated 4.6.1949 by Jaideo Lai in favour of the defendant No. 1.
(b) the plaintiffs in order to harass the defendant No. 1 got a sale-deed executed at a much later date with an ante-date on it. The defendant has also categorically denied the passing of the consideration stipulated in the said deed of sale in favour of the plaintiffs. There was no payment of Rs. 287/- to Siyasaran Prasad Sahi in satisfaction of any debt transacted by Jaideo Lal on the basis of a hand note dated 7th Nagh, 1356 Fasli. The said hand note in question was a forged and fabricated document as defendant No. 2 who was a Molajim of Siyasaran Prasad Sahi got such handnote executed to create evidence. There was no payment of Rs. 112/- to Jaideo Lal on 3.6.1949, the date on which the alleged sale-deed was executed. Samir Kumar who is the son of Sabilakh Lal, plaintiff was a Stamp Vendor in Kishanpur Registry Office and so the plaintiffs purchased stamps from him with an ante-date on them and thus got the said deed executed. Thus, the sale-deed dated 3.6.49 in favour of the plaintiffs was neither complete nor any consideration amount was paid in any way and thus no title could pass to the plaintiffs on the basis of the said sale-deed. Defendant No. 1 alleged in his written statement that the plaintiffs never got possession over any portion of the suit land and in their anxiety to show their acts of possession over the disputed land. When the defendant came to know about this act of the plaintiffs, he filed an objection before the Anchal Adhikari, who immediately stopped further digging of the well and thereafter the proceeding under Section 144, Cr.P.C. was started.
(c) The specific case of the defendant is that in the year 1949 Jaideo Lal made a proposal to this defendant for exchange of his land measuring 5 kathas 1 dhur with some of the lands of this defendant No. 1. Defendant No. 1 having agreed to his proposal got plot Nos. 1246, 1247 and 1292 measuring 5 Kathas 1 dhur for exchange from Jaideo Lal by registered leed of exchange and in its place gave plot Nos. 1298 and 1098 measuring 4 kathas 7 1/2 dhurs of Jaideo Lal and for that a deed of exchange was executed on 3.6.1949, but because certain mistakes were made in reciting the deed dated 3.6.1949 and so the parties to it did not agree to it and, therefore, another deed of exchange was executed and Registered on 4.6.1949 and thus, defendant No. 1 got possession over the disputed land after the execution of the said deed of exchange and in its terms his vendors got possession over plot Nos. 1298 and 1908. The defendant thereafter paid rent of the exchange land for same time through Nandkishore Jha and thereafter got his name mutated in the landlord seristha and thereafter, he was paying rent against proper rent receipt.
5. The learned Munsif framed as many as eight issues for trial.
6. Issue 7 relates to the validity of sale-deed dated 3.6.1949 executed by Jaideo Lai in favour of the plaintiffs and whether it. was prior in time than the deed of exchange alleged to have be executed by the said Jaideo Lal in favour of the defendant.
7. The Munsif fund that the deed of exchange in favour of defendant was never operative in law. The title to the land in question passed in favour of the plaintiff on 3.6.1949 as well as the sale-deed (Ext. 2) was executed and therefore, nothing was left with Jaideo Lal to create any title over any portion of the land in question in favour of the defendant on 4.6.1949
8. As regards possession the finding is that the story of amalgamation put up by the plaintiffs and supported by the witnesses is true and there is strong circumstance to prove the plaintiffs' possession over the same. The learned Munsif also noted other, circumstances in favour of the plaintiffs' possession. The learned Munsif held that the plaintiffs' case was also supported by the witnesses. The evidence regarding possession of defendants was not accepted. The learned Munsiff concluded have been able to find that the plaintiffs are in possession over the land in question down from the year 1949 till today without any break in it. There is no evidence on record to show that the defendant over tried to get possession over the land in question through the process of the Court after the disposal of the proceeding under Section 145, Cr. P.C. The learned Munsif further held that the plaintiffs derived valid, title to the land in question by means of their sale-deed, Ext. 2, dated 3.6.1949 that they are genuine and in possession since then and that their sale-deed, Ext. 2, is prior in time and date to the deed of exchange executed in favour of the defendant. The suit was decreed.
9. On appeal, 5th Addl. Sub-Judge Samastipur differed with the findings of the Munsif. The learned Sub-Judge accepted the case of the defendant that Ext. 2 was manufactured document and it was registered much after four months of its alleged execution without observing and complying with the mandatory provision of law. Thus, Ext. 2 was hit by Section 49 of the Registration Act. The learned Sub-Judge relied on AIR 1956 (Assam) 123 and other decisions on the point and held that the document was invalid. It was further held that the sale-deed was not a genuine document but manufactured one. The Suit was, therefore, dismissed.
10. The only substantial question of law was raised for consideration whether the First Appellate Court has erred in law in holding that the sale-deed (Ext. 2) was an illegal document.
11. Sri Indu Sekhar Prasad Sinha, learned Senior Counsel for the appellants submitted that the Court of appeal below erred in holding that Ext. 2 was out and out illegal document and it. cannot be looked into as evidence for the purpose of the suit and has completely misconstrued the provision of the Indian Registration Act. It was further argued that the learned Sub-Judge erred in arriving at a conclusion that Ext. 2 is not genuine and has been manufactured after ante-dating the same and getting the L.T.I. of some persons other than Jaideo Lal.
12. The learned Sub-Judge non-suited the plaintiffs for the simple reason that sale-deed Ext. 2 was registered in breach of Section 26 of the Indian Registration Act inasmuch as the document was presented for registration beyond four months of the execution. There is no finding that the document was presented for execution before the registration.
13. Learned Counsel for the appellants submitted that the document was registered after realising the late fee, hence, there is no defect for registration which fact has not been considered by the appellate Court.
14. The learned Munsif had no occasion to consider the legality of the registration since there was no plea on behalf of the defendants. It is admitted that the document was registered under Section 75 of the Indian Registration Act. The executant was admitted before the Sub-Registrar concerned. The learned Munsif had considered the entire evidence and then decreed the suit. He also found the possession of the plaintiffs.
15. Learned Sub-Judge, however, dismissed the suit on the ground that the sale-deed was executed beyond four months of execution. This argument was advanced for the first time before the appellate Court.
16. I have examined the finding of the appellate Court. The learned appellate Court, noticed that Jaideo Lal purchased the stamp on 3.6.49 from Ramawtar Lal, Stamp Vendor (D.W. 18) at Samastipur. He has supported this fact in his evidence. The learned Judge has observed that when Jaideo Lai was at Samastipur on 3.6.49, it was not believable that the same Jaideo Lal executed Ext. 2 on 3.6.49 at Kishanpur. The learned Sub-Judge held that stamp was purchased by Dwarikalal and not by Jaideo Lal. The finding is contradictory. The learned appellate Court has examined The no impression of Jaideo Lal on Ext. 2 and found that there was difference in L.T.I. on Exts. C and C/1 of Jaideo Lal. If it was a case of forgery, the defendants should have applied the Court for examination of the documents by an ex-parte. The learned subordinate Judge has not correctly appreciated Section 49 of the Indian Registration Act. It is not a case that the document was not registered. The plea of the defendants was that it was not a legal registered document. The learned appellate Court has not tried to dislodge the finding of the trial Court by his own reasoning.
17. I, therefore, constrained to set aside the judgment of the appellate Court. The decree of the appellate Court is set aside and the matter is remitted to appellate Court for reconsideration of the appeal in the light of discussion in this judgment. As noticed earlier, there was no issue before the trial Court whether the sale-deed Ext. 2 was invalid as it was presented for registration after four months of the execution. The appellate Court shall frame a specific issue hi this regard. The appellate Court shall decide die appeal within three months from the date of receipt of a copy of this judgment. There shall be no order as to costs.