Chhangani, J.
1. This is a defendant's second appeal against the judgment and decree of the District Judge, Pali, dated 31st March, 1955. The plaintiff-respondents have also filed cross-objections. They initially came up before a Single Judge of this Court who after hearing the learned counsel for the parties, considered that an important point called for determination in the appeal, namely, whether under the facts and circumstances of this case the patta Ex. P-l was required to be registered under the provisions of the Marwar Patta Ordinance. He consequently referred this point to a larger Bench. The matter having come before a Division Bench of this Court it was ordered on 25th of August, 1961 that the whole case may be referred to the larger Bench. The Single Judge thereafter, on 18th November, 1961, referred the whole case to the Division Bench and this is how the matter has come before us.
2. The facts giving rise to the appeal may be briefly stated as follows:
Achaldas, who is now dead and is represented by the respondents, his sons Sundermal, Vimalraj and grandson Ugamraj, the latter two minors through their next friend Achaldas of village Khod, instituted a suit in the Court of the Judicial Superintendent, Sojat, against the appellant Bachhraj for possession of a piece of land situated in village Khod shown as 'ABCD' in the plan submitted with the plaint, and for mesne profits amounting to Rs. 14/- at the rate of rupee 1/- per month. The plaintiffs' case was that they bad obtained patta Ex. P-l of a land from Thikana Khod on 20th August, 1944 for Rs. 401/- for an area measuring 20' north-south and 9' east-west. That on a part of the land obtained by the plaintiffs from the Thikana the defendant had already constructed a latrine and an 'ordi' in the samvat years 1994 and 1998 respectively and that the land covered by the 'ordi' and the latrine was 14' north to south and 9' east to west.
According to the plaintiff-respondents, the defendant's possession over the land covered by latrine and the ordi was without right and constituted trespass and, therefore, the plaintiffs were entitled to a decree for possession and also to a decree for mesne-profits. They, therefore, prayed for a decree for the possession of the land 14' x 9' covered by the latrine and the ordi. They also claimed Rs. 14/- as mesne profits. It may also be noted here that Thikana Khod was also impleaded as a defendant and the plaintiffs claimed an alternative relief against the thikana praying that in case the plaintiffs' suit for possession is not decreed, they should be awarded a decree for damages against the thinkana for an amount of Rs. 1,100/-.
3. The defendant-appellant Bachhraj opposed the plaintiffs' suit. He did not admit the patta Ex. P-1 dated 20th August, 1944 and further pleaded that the thikana had no authority to issue patta to the plaintiff-respondents. His case was that his ancestors had already obtained patta Ex. D-1 dated Baisakh sudi 5 Samvat 1958 and another patta Ex. D-2 dated Kartik sudi 13 Samvat 1948 and that these pattas covered the land claimed by the plaintiffs under the patta Ex. P-1. The defendant also alleged that the patta Ex. P-1 covered only the land under the ordi but did not cover the portion covered by the latrine as also some open land between the latrine and ordi. The defendants also pleaded that prior to the present suit, the plaintiffs had filed a suit against him for the cancellation of pattas Ex. D-2 and the removal of the ordi and that that suit had been dismissed by the trial Court and the dismissal was upheld by the Chief Court of the former Jodhpur State and consequently the present suit of the plaintiffs was barred by the principle of res judicata. It was also mentioned in the written statement by the defendants that the land being already in his possession, the thikana was not justified in issuing the patta Ex. P-1 to the plaintiff-respondents. An averment was also made that the patta was issued by the thikana without following a proper and just procedure inasmuch as no proclamation inviting objections was issued before the grant of the patta,
4. The defendant thikana Khod admitted having issued the patta Ex. P-l to the plaintiff-respondents, and having received Rs. 401/- from them. It was, however, averred that the land covered by the patta Ex. P-1 commences not from the wail of the entrance gate of the plaintiffs but from the end of the plaintiffs' chabutri. Thus, the thikana did not support the plaintiffs' claim in respect of the entire piece of land claimed by the plaintiffs. According to this defendant, the land covered by the latrine and shown 'ABXY' in the plaint was not covered by the patta Ex. P-1.
5. The trial Court, on the pleadings of the parties, framed eleven issues and after recording evidence decreed the plaintiffs' suit for possession of the entire land claimed by the plaintiffs. The plaintiffs' claim for mesne profits upto the date of the suit and pendente lite and future was disallowed. The defendant filed an appeal before the District Judge, Pali. It may be mentioned here that Achaldas, who was one of the plaintiffs and who acted as the next friend of the minor plaintiffs Vimalraj and Ugamraj, had died in the meanwhile and in the appeal filed by the defendant, Sundermal, who is the brother of Vimalraj, was shown as a next friend. The plaintiff-respondents filed cross-objections before the District Judge in respect of mesne profits. The District Judge, Pali, partially accepted the defendant's appeal and disallowed the plaintiffs' claim for dispossession in respect of portion of the land marked ABXY covered by the latrine. The remaining decree in favour of the plaintiff-respondents was upheld. The plaintiff-respondents' cross-objections were also dismissed. The defendant has filed the present appeal praying for the dismissal of the entire suit and the plaintiff-respondents have filed cross-objections praying for a decree in terms of the suit.
6. When the appeal came up for hearing before us on 25th July, 1962 the learned counsel for the respondents raised a preliminary objection to the effect that the appeal was not properly constituted inasmuch as the respondent No. 2 Vimalraj, who was a minor at the time of the institution of the appeal, was not described as a minor and he was not represented by his next friend. Mr. Srikishan Mal Lodha for the appellant thereupon filed an application under Order 6 Rule 17 read with Section 107, Order 41 Rule 3, Sections 151 and 153, Civil P. C. stating therein, that the respondent had become major before the hearing of the appeal, and thus suggesting that the initial error in this behalf became inconsequential. It was also prayed that the appeal may be allowed to be amended suitably.
At the time of hearing of appeal Mr. Hastimal, appearing for the respondents, pressed a preliminary objection that the appeal should be dismissed as improperly constituted. His argument was that at the time of the institution of the appeal Vimalraj was a minor. He had been represented at an earlier stage, i.e. before the District Judge, Pali by his next friend Sundermal and that it was necessary for the defendant-appellant to have filed appeal against the minor by showing Sundermal as his next friend. No appeal could be filed, Mr. Hastimal contended, against the minor without mentioning the next friend for his proper representation. He further contended that a minor without a proper and competent guardian cannot be considered to be properly a party to an appeal. Thus, according to him, there was no proper appeal against the minor Vimalraj and the period of limitation against him having expired, he could not be brought on record and the appeal against him deserves to be dismissed. Further he argued that as the decree was indivisible the appeal against the other respondents also became unmaintainable. In support of his contention, he relied upon a number of cases.
7. The first case referred to by Mr. Hastimal is Rashid-un-nisa v. Md. Ismail Khan, ILR 31 All 572 (PC). He emphasised the following observations made by their Lordships in this case.
'Their Lordships agree with the Subordinate Judge that the appellant was never a party to any of these suits in the proper sense of the term. Her sister, Ulfat-un-nisa, was a married woman, and therefore was disqualified under Section 457 of the Code from being appointed guardian for the suit, and Mauladad's interest was obviously adverse to that of the minor.'
For a proper appreciation of the implications of these observations, we must not ignore the circumstances under which these observations were made. In the case before the Privy Council the facts were that two decrees had been obtained against the minor and in execution of those decrees three sales had taken place. The minor had been represented in the suits and the subsequent proceedings by her married sister who could not be appointed a guardian under the law. A suit was Drought on behalf of the minor under Section 244, Civil P. C. then in force (equivalent to Section 47 of the present Code of Civil Procedure) for cancellation of the decrees and the setting aside of the sales. An objection was raised that the suit on behalf of the minor was not competent as it was open to the minor to take objection in the execution proceedings under Section 244. Overruling the objection, their Lordships held that the minor was not properly a party in the earlier suits.
It has to be remembered in this connection that in the case before the Privy Council, the earlier suits had been finally disposed of and had resulted in decrees against minor and sales of properties had taken place in execution of the decrees without a competent guardian to represent them. The question of taking appropriate steps for the representation of the minor during the suit and the proceedings did not arise for determination. In the facts and circumstances, of the case, the Privy Council had rightly observed that the minor was not properly a party in those suits. The observations made in that case cannot, in our opinion, be extended to a case where during the pendency of the suits or proceedings steps are taken to secure proper representation of the minors. In taking this view, we are clearly supported by the language of Order 32 Rules 2 and 3, Civil P. C. Order 32 Rule 2 Civil P. C. provides
'where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. (2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit.'
The words, 'may make such order in the matter as it thinks fit' appearing in Sub-rule (2) should be fairly construed to empower a Court to permit the suit instituted by or on behalf of a minor to be continued after taking steps to see that a next friend of the minor is named and brought on record to conduct the suit on behalf of the minor. In our opinion, it will not be correct to conclude that the rule contemplates merely an order taking off the plaint. On a fair construction it does contemplate an alternative order for rectification of the error and the continuance of the suit. Similarly, Rule 3 mows that the plaint need not necessarily mention the guardian ad-litem of the minor defendant Sub-rule (1) clearly provides that where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. In fact, according to the true construction of Rule 3 there can be guardian-ad-litem of the minor only under the orders of the Court.
8. On the basis of the language of Rule 2 and Rule 3 we feel inclined to take the view that subsequent steps taken by a party to secure the proper representation of the minor, whether he is a plaintiff or a defendant, can validate the earlier irregularities, if any, in the mention of the next friend or guardian ad-litem of the minor. In our opinion, the learned counsel for the respondents cannot derive much assistance from the observations made in ILR 31 All 572 (PC).
9. Mr. Hastimal also relied upon Ganesh Singh v. Govind Ganesh, AIR 1944 Nag 78, Sheo Narain v. Bala Rao, AIR 1922 All 332 (1), Bhagelu v. Mst. Dharma, AIR 1924 All 79 and Raj Behari Lal v. Mahabir Prasad, AIR 1956 All 310 (FB). Without going into the details of these cases we may mention that in all these cases appeals were filed on behalf of the minors by guardians other than those named and appointed by the trial Court and it was held that the appeals filed by persons other than the guardians appointed by the Court were not competent. We may point out that a different view has been taken by the Full Bench of the Allahabad High Court in AIR 3956 All 310. The majority of the Full Bench took the view-
'That a minor defendant against whom a decree is passed can file an appeal through a person other than the guardian ad litem appointed in the trial Court and such an appeal would be a validly instituted appeal, provided that upon an application made by the aforesaid person the Court orders the removal of the guardian ad litem appointed in the trial Court with effect from the date of the institution of the appeal and appoints the person who has filed the appeal on behalf of the minor as the guardian of the minor with effect from that date.'
Thus, even in case of an appeal on behalf of a minor by a person other than the guardian named or appointed by the Court the judicial opinion is not unanimous. We, however, do not propose to express any firm opinion on the question of law dealt with in these cases as in our opinion the principle of these cases cannot be extended to a case where the minor is arrayed on the side of the respondents, for in the case of appeals on behalf of the minors, the crucial and important question of the proper presentation of the appeal does arise which does not arise in the cases where the minor is a respondent.
Reliance was placed upon a decision of this Court reported in Chimna v. Chunilal, ILR (1954) 4 Raj 244. In that case some minor joint-decree-holders were not made respondents by the appellant judgment-debtor. An objection was raised that the appeal was not properly constituted. In reply, it was argued that the other decree-holders who had been impleaded as parties to the appeal, effectively represented the minors and, therefore, the failure to implead the minors should not be held to be a defect fatal to the present appeal. Modi, J. overruled the contention and significantly observed that 'it is the minor who is the real party, the next friend only represents him and acts for him and is not a party to the suit in the proper sense of the term.' The principle of the case cannot be applicable to the facts of the present case where the minor was actually joined as a party and his next friend was also a party to the appeal not only in his individual capacity but as a next friend of another minor.
10. We may also point out that Shri Srikishan Mal has also referred to the following cases in support of the view that the absence of the mention of the guardian is a case of mere mis-description of the parties and can be rectified by a proper amendment of the appeal -- Rupchand v. Dasodha, JLR 30 All 55, Mahboob Ali v. Avadh Behari, AIR 1947 Oudh 162, Narayanchandra v. Dulal Chandra, AIR 1927 Cal 477, Durga Devi v. Gur Narain, AIR 1924 Lah 157. It is also noteworthy that in the present case Sundermal who was admittedly the next friend of Vimalraj, is a party to the appeal, not only in his individual capacity but in his capacity as a guardian of another minor, namely, Vimalraj. The minor is also a party to the appeal. It appears to us that the appellant through some inadvertence omitted to mention Sundermal as the next friend of both the minors and mentioned him as a guardian of only one minor Umedraj. In the facts and the circumstances of the case, we are clearly of the opinion that it is a case of misdescription and is capable of being rectified even at this stage.
We may also like to observe that even if we were to treat this as a case of not mere mis-description we would have no hesitation in granting the benefit of Section 5 to the appellant, for there are very good reasons for extending benefit under Section 5 of the Limitation Act. Sundermal the next Mend of the minor was or is a party to the appeal. The minor was also a party. The notice of the appeal was served on the minor. The plaintiff-respondents themselves filed cross-objections in which Vimalraj was arrayed on the side of the respondents. He was not described as a minor even in cross-objections. Vimalraj had attained majority in the year 1956 soon after the institution of the appeal. When the appeal was heard by the Single Judge on 2nd December, 1960 no objection to the competence of the appeal was raised, though Sundermal, who was the next friend of the minor in the lower appellate Court was party to the appeal and had also filed cross-objections showing Vimalraj as a party in the cross-objections. No objection was even raised before the various Benches of this Court at any stage till 25th of July, 1962. In these circumstances, we do not at all doubt the bona fides of the appellant and see no objection whatsoever in granting benefit under Section 5 of the Limitation Act. Thus viewing the matter from the various angles, we do not find any force in the preliminary objection which is hereby overruled.
11. Dealing with the appeal on merits, the main and the principal contention advanced by Mr. Srikishan Mal is that the patta Ex. P-1 was in the nature of a sale-deed and purported to create rights in immovable property of a value exceeding Rs. 100/- and as such, it was compulsorily registrable under the provisions of Section 17(1)(b) and (c) of the Marwar Registration Act, 1934. He also invited our attention to Sub-section (2) Clause (7) where a patta granted by the Government for immovable property was exempt from registration and emphasised that a patta granted by the jagirdar is not exempt from registration. Then referring to Section 49 of the Registration Act, Mr. Srikishan Mal argued that the patta having not been registered, did not affect the suit property which was comprised in the patta and did not convey any title or interest in favour of the the plaintiff-respondents.
12. For a proper determination of the question raised by Mr. Lodha, it will be proper and useful to refer to the provisions of the Marwar Patta Ordinance, 1921 which consolidated and amended the practice relating to the grant and renewal of the pattas of the State lands situated within Hakumat and other Khalsa towns and villages of Marwar. It may be mentioned that before the promulgation of this Ordinance the grant and renewal of pattas both in respect of the State lands and the jagir lands was governed by some practices in force and that the practices relating to grant and renewal of pattas of State lands was consolidated and amended by this Ordinance. Section 6 of the Ordinance, which created an obligation on the part of persons in possession of urban sites in so far as it is material for our purposes, reads as follows:
'Every person who, when this Ordinance comes into force, is or hereafter may be, in the occupation of land not covered by a patta issued by or under the authority of the Darbar, shall, unless the land is exempted by general or special order of the Darbar (the onus of proving which shall He upon him) obtain a patta therefor.........
(2) Every person who, when the Ordinance comes into force is, or hereafter may be, in the occupation of land covered by a patta (otherwise than in virtue of a transfer by mortgage in any form only) shall renew the patta in his own name...
(3) Every person who after this ordinance comes into force desires to obtain possession of any unoccupied land shall apply for a patta or if he is entitled to it, a parwana therefor............
(4) Every person who after the 31st December, 1925, desires to obtain possession of any unoccupied land shall, before occupying it, obtain a patta or if he is entitled to it, a parwana therefor.'
Sections 8 and 9 make provisions for securing that persons in occupation of lands should be compelled to obtain pattas for the lands and for that lays down certain directions. Section 10 provides for application for the grant or renewal of patta. Sections 11 to 17 provide for the procedure for the grant and renewal of pattas. Under Section 14, after receipt of an application the authority dealing with the application is required to issue a proclamation inviting objections. These objections are to be disposed of in accordance with the principles mentioned in Section 16. Section 17 Sub-section (5) which is relevant for our purposes, provides the manner in which patta for unoccupied land is to be granted and reads as follows:
'Unoccupied land for a patta of which application is made shall, unless there is any local custom or authoritative grant to the contrary, be put to public auction. The applicant shall be given the option of purchasing it at the price last bid, and if he is unwilling to do so it shall, unless, there are valid reasons to the contrary why this bid should not be accepted, which shall be recorded in writing, be knocked down to the person who made the highest bid.'
Section 18 provides for the amount of fees and penalties leviable for grant and renewal of pattas varying according to the periods of possession and time taken in making applications. Section 19 provides that if any person who is in possession of any land when this Ordinance comes into force or obtains possession pf any land after this Ordinance comes into force, fails to apply for a patta or renewal of patta, as the case may be, and such failure is discovered in the course of proceedings' under this Ordinance or otherwise, such person shall be liable to pay present site value and also penalty not exceeding the maximum penalty prescribed by rule under Section 36(1). Section 25 provides that the authorities dealing with the proceedings for the grant of patta are required to submit to superior authorities and it was only after the sanction of the superior authorities that the pattas could be granted. The superior authorities have the discretion to sanction the grant of patta or to amend or set the order of course after giving proper notice to the parties whose interests are likely to be affected.
After the sanction, the authorities who took the initial proceedings have to take steps for the recovery of the fees and penalties payable by the persons required to obtain patta and these fees and penalties can be recovered under the provisions of the Public Demands Recovery Act. In cases where the sanctioning authority is other than the Mehakma Khas, then under Section 30, appeals lie to the Mehakma Khas and the Mehakma Khas in the exercise of appellate jurisdiction has jurisdiction to set aside the order sanctioning patta. It may also be mentioned that if in the meanwhile patta is issued the order of the Mehakma Khas setting aside the order sanctioning patta should operate as a cancellation of patta. Section 34 provides for the revision by the Mehakma Khas and the Darbar in certain cases,
13. From the above review of the provisions of Patta Ordinance, we can fairly deduce the following principles.
1. That even though a person may have had title deed such as a deed of transfer or grant in his favour when the Patta Ordinance came into force, he was bound to obtain patta in his own name.
2. Even if a person had no title deed but had his title perfected by a long and continuous possession yet he was bound to obtain patta.
3. A person obtaining land on a transfer otherwise than under a mortgage from rightful owner of the land having title deeds in his favour was also bound to obtain a patta.
4. The persons desiring to obtain possession of the unoccupied land are also required to obtain patta before securing possession of the land.
5. That after the sanction of the patta even without the issue of a patta the authority dealing with the patta cases is competent to recover the patta-fee as an arrear under the Public Demands Recovery Act.
6. That in certain cases a patta issued can becancelled on adverse order passed at the appellatestage.
14. It is true that the Marwar Patta Ordinance does not in term apply to the Jagir-lands but it cannot be disputed that in the jagir-lands also pattas had to be Issued and renewed in accordance with certain practices. In this connection we may refer to a notification issued under the authority of the Darbar which reads as follows:
'As there is some confusion in regard to appeals from owners in cases relating to pattas in thikana, His Highness the Maharaja Sahib Bahadur has been pleased to order (vide Convening Member's letter No. 1083 dated 22nd April, 1925 and C. R. No. 10 dated 13-4-1925.)
1. That in cases when there are two parties to the patta proceedings in a thikana Court the thikana being merely a Judge between them, any person aggrieved by the order passed should appeal to the Chief Court according to the current practice.
2. That where a thikana has taken any proceedings of its own motion for the grant of patta in a Jagir village or to compel a person to take a patta or in any other way, any person aggrieved by the order may appeal to the Mehakma Khas.' It is clear from this notification that the jagirdars dealing with the issuing and renewing of pattas were not the final disposing authorities and were subject to the appellate jurisdiction of the Chief Court and the Mehakma Khas and they were expected to deal with the patta cases in accordance with the guiding principles enunciated in the Patta Ordinance. We may in this connection refer to Dharam Chand v. Bhagwandass, 1943 Marwar LR 49 (Civil) where a Division Bench of the former Chief Court made the following observations:
'This Ordinance does not of course apply to Thikanas, but it does afford a good guidance to the Thikanas as regards the procedure to be followed by them in dealing with patta cases.'
In the case before the Chief Court as the respondent's objections were not decided after framing issues and recording evidence, the case was remanded for fresh decision to the thikana. In the absence of any other contrary materials, we consider that the opinion expressed by the Chief Court as early as 1943 deserves to be accepted and followed.
15. Thus, the principles deduced above on the review of the Patta Ordinance can be considered also relevant in considering the proper significance of the pattas issued by the jagirdars.
16. Now, on a consideration of (i) the creation of a general obligation to obtain a patta or renewal of patta in the various contingencies enumerated above, (ii) prescription of different fees as also penalties varying according to the periods of possession and time taken in making applications, (iii) drastic provisions of Section 19, (iv) the possibilities of cancellation of patta in consequence of adverse appellate! decisions, and, (v) provisions for the recovery of fees and penalties under the Public Demands Recovery Act before the issue of patta, a patta cannot invariably be taken as a title deed or a document creating rights in respect of immovable land. In the cases mentioned in principles Nos. 1 to 3 stated earlier, a patta can never be treated as a title deed or a document creating rights in immovable property and, therefore, the question of registration does not arise. The position with regard to the cases dealt in the principle No. 4 above which involves a transfer of land, requires a further examination.
At this stage, it will be useful to refer to the fact that up to March, 1949 the Transfer of Property Act was not in force in the former Marwar State and there was no, provision like Section 54 of the Transfer of Property Act requiring that a transfer in the form of a sale of tangible immovable property in the value of Rs. 100/- or above can be made only by a registered instrument. Oral sales of immovable properties were permissible under the law in force in the former Jodhpur State. The law relating to registration has no bearing on this aspect of the case, as the law of registration, as it is well settled, affects only the documents but not the transactions. It only implies that if there is an instrument executed to create rights in immovable properties of the value of over Rs. 100/- then that instrument requires to be registered. Another important fact which we must emphasise is that the grant of a patta by a jagirdar. pre-supposes some proceedings and that these proceedings were subject to' the appellate jurisdiction of the Chief Court or the Mehakma Khas in certain cases. We might also add that even in. respect of applications for grant of pattas of unoccupied jagir lands there could be objection by the neighbours or the members of the public on the ground of public interest and they could further take up the matter in appeal to the Mehakma Khas and the Mehakma Khas in the exercise of the appellate jurisdiction could cancel the order of a jagirdar granting patta.
On giving proper consideration to these facts, we can safely arrive at a conclusion that ordinarily the grant of a patta followed a prior oral sale in a proper proceeding and that pattas used to be issued to recognise the oral sale in the customary manner by the grant of patta and that the patta merely contained a recital of a prior completed oral sale. In these circumstances, in our opinion, a patta cannot ordinarily be considered a sale-deed or a document by itself creating rights in immovable properties. Such a document, in our opinion, did not require to be registered compulsorily.
17. We may at this stage refer to a decision of the former Chief Court reported in Jutha v. Bhoma, 1939 Marwar LR 266 (Civil) where a Bench of that Court observed as follows:
'The Transfer of Property Act is not in force an Marwar so that the statutory provisions of that Act embodied in Section 54 as to the modes of transfer of property cannot be enforced and an oral sale can be recognised as valid. The Patta which is issued by the Thikana is not a sale deed. It is only a sanad evidencing the sale of land by Thikana. In case of Thikana land sold by public auction according to the principles of Patta Ordinance as in case of Khalsa land, it is not necessary to execute a registered sale deed in favour of the purchaser.'
There can be no doubt that the Chief Court had the advantage of having intimate knowledge of the practices relating to the grant of pattas by jagirdars and, therefore, the view taken by that Court deserves to be given due weight and we see no good reason to differ from it. We are not unconscious of the fact that in some cases the jagirdar might have combined transaction of sale and the issue of a patta and might have issued a patta which by itself might have purported to create rights in immovable property. Such a patta might require to be registered compulsorily. The final conclusion then to which we reach is that whether a patta should be registered or not, cannot be decided in the abstract and must be decided on the facts and the circumstances under which the patta was granted. Ordinarily the presumption will be that the patta was intended to be the sanad evidencing the sale of land by thikana and did not require registration.
18. Judging the present case in the light of the principle enunciated above, we may at once observe that the defendant did not take any objection in the written statement that the patta Ex. P-1 required to be registered and that it did not convey any title in favour of the plaintiff-respondents nor any objection was taken to the admissibility of the document. The objection was not taken even at the appellate stage. It is only for the first time in the second appeal that this objection was taken. On the view which we have taken above, the question of the compulsorily registrable nature of patta must depend upon the facts and circumstances of each case. The question cannot be treated as a pure question of law. It is a mixed question of law and fact. Now there are no materials on the record of this case whether in the present case the patta merely followed a prior completed oral sale or was intended to create rights in the immovable properties. This situation is certainly due to the fact that the defendant having raised no objection as to validity of patta on account of want of registration, no issue was framed and that parties had no opportunities to bring on record the circumstances under which the patta was issued.
19. Shri Srikishan Mal referred to the plaint and contended that the plaint allegations show that patta was intended to create rights in immovable properties. The plaint merely recited that the thikana having sold the property to the plaintiffs granted a patta thereof. The recital is no doubt a little ambiguous but it cannot be possibly construed to imply that the plaintiffs came forward with a case that the patta itself was in the nature of a sale deed and created rights in favour of the plaintiff-respondents. On a consideration of the entire circumstances of the case, the extremely belated objection of the defendant-appellant cannot be allowed and we are unable to hold that the patta Ex. P-l required to be registered. .
20. Next it was contended by Mr. Lodha that the Thikana did not follow a proper procedure before granting the patta Ex. P-l and, therefore, the patta granted by the Thikana was invalid and ineffective. Unfortunately, even on this aspect, the parties did not join any issue and naturally there could be no evidence on record. The defendant made no attempt to obtain the thikana record of the proceedings which resulted in the grant of patta. Further, even if there was any irregularity in the grant of patta itself, the same was not sufficient to make the patta invalid or ineffective. We do not find any substance in this contention.
21. Thirdly, it was contended by Mr. Srikishan Mal that patta Ex. D-2 granted by the thikana in favour of the appellant's ancestors covered the whole land including the land occupied by ordi and that the Courts' below committed an error in holding that the document Ex. D-2 was invalidated on a ground that it was issued by the jagirdar during his minority. The argument in this connection is that the jagirdar subsequently by a document dated 30-10-45 ratified the transaction of the issue of patta and, therefore, Ex. D-2 became a valid document. We may also point out that even on this question the appellant did not make any effort to get an issue struck and, therefore, no evidence was led. We are also inclined to observe that the grant of a patta by a minor is void ab initio and it could not have been validated by a subsequent ratification. At any rate, in the facts of the present case the alleged ratification is of no avail because the ratification was made after the grant of patta in favour of the plaintiff-respondents and also after the institution of the suit by the plaintiff-respondents. The jagirdar having parted with his right in favour of the plaintiff-respondents was not in a position to ratify the earlier invalid transaction.
22. The fourth contention of Mr. Lodha was based upon a prior litigation between the parties. It is not disputed that the plaintiff-respondents had earlier before the grant of the present patta filed a suit against the defendant-appellant for the cancellation of the pattas Ex. D-1 and Ex. D-2 and for the removal of the latrine and the chabutri and that that suit resulted in dismissal and the dismissal was upheld right upto the Chief Court. The question, however, is whether the result of the prior litigation operated as res judicata in the present litigation. We may mention in the first instance that this issue was abandoned by the appellant before the District Judge and, therefore, he did not record any decision on this point. Assuming that the point could still be raised, we consider that the result of the prior litigation did not operate as res judicata in the present litigation. The prior litigation was carried on by the plaintiff-respondents prior to the obtaining of the patta Ex. P-1 and the prior decisions were based only on the adverse effect on the easementary rights of the plaintiff-respondents. There was no question of title in respect of the present land in issuing those proceedings. The plaintiff-respondents after failing in that litigation obtained a patta in respect of that land and this brought about a change in the situation and the plaintiff-respondents were certainly in a position to file the present suit on the basis of newly acquired title in respect of the land. The contention of Mr. Srikishan Mal in this behalf cannot, in the circumstances, be accepted.
23. Lastly, Mr. Srikishan Mal challenged the finding of the courts below that Ex. P-1 covered the land between the latrine and the chabutri. In this connection, he pointed out that the first appellate court referred to an admission of the appellant in the written statement which, according to him, is a misreading of the written statement. Even ignoring this the courts below had other sufficient materials to come to the conclusion that Ex. P-l covered the land and the lane and the concurrent finding of the courts below cannot be disturbed in the second appeal. There is no force in this contention either.
24. The various contentions advanced by the defendant-appellant having failed, we find no force in the appeal, which is hereby dismissed with costs. The learned counsel for the plaintiff-respondents did not press cross-objections and, therefore, they are dismissed as having not been pressed. In the circumstances, we leave the parties to bear their own costs of the cross objections.