( 1 ) THIS is a second appeal by the legal representatives of the original plaintiff against the decree passed by the Civil Judge, Belgaum in CA. No. 434 of 1965, confirming the decree passed by the Joint Civil Judge jd. , Chikodi in RCS. No. 599 of 1050.

( 2 ) THE plaintiff brought the suit for taking accounts and redemption of the mortgage deed dated 24-6-1879, produced in this case as Ext. 65 under S. 15 (D) of the Deccan Agriculturists Relief Act, 1879. The property originally belonged to four brothers. Sakharam, Antaji, Appaji and meleiri. They executed an usufructuary mortgage deed in favour of Nabisaheb, khonmirasaheh and Imamsaheb on 24th June, 1879. Subsequently, one of the mortgagors Melgiri died and his line became extinguished The remaining three mortgagors executed a sale deed on 26th May, 1890 in favour of one of the mortgagees, viz. Nabisaheb for a sum of Rs. 600 which document has been produced in this case as Ext. 69. The sale deed was, however, not registered. Nabisaheb continued in possession in pursuance of the sale deed Ext. 69. The plaintiff is one of the successors in interest of the original mortgagors. The plaintiff brought the suit for redemption of mortgage and for accounts under S. 15 (D) of the DAR. Act, on the basis that the mortgage evidenced by Ext. 65 is still subsisting.

( 3 ) DEFENDANTS 1 to 6. the heirs of the original mortgagees, resisted the suit on various grounds. The principal contention taken by them was that they have perfected their title by adverse possession, as a result of which the equity of redemption in favour of the plaintiff has been extinguished long back. In support of this contention of theirs, they relied upon the unregistered sale deed Ext. 69 dated 26th May, 1890. They contended that from the date of the said sale deed, the character of the possession was altered from that of mortgagees in possession to that of owner. They further contended that after the expiry of a period of 12 years from the date of the sale deed Ext. 69, they perfected their title by adverse possession. Both the Courts accepted the contention of defendants 1 to 6 and held that they have perfected their title by adverse possession and that the equity of redemption in favour of the plaintiff has been extinguished long back. Consequently, both the Courts dismissed the plaintiff's suit.

( 4 ) IT is the legality of the decree passed by the learned Civil Judge in appeal, that is challenged by the plaintiff in this second appeal under section 100 of the Civil Procedure Code.

( 5 ) SHRI N. A. Mandgi, learned Counsel appearing for the appellant, contended that the finding recorded by the learned Civil Judge that defendents 1 to 6 have perfected their title by adverse possession is not in accordance with law. Shri Mandgi's principal compaint is about making use of the recitals in Ext. 69, the unregistered sale deed dated 2. 6th May, 1890. Shri Mandgi contended that, as the consideration for the sale was more than Rs. 100 the sale deed was compulsorily registrable. As the document is unregistered, Shri Mandgi contended that the same is inadmissible in evidence. The Courts below, having held that the document ext. 69 is inadmissible in evidence for want of registration, have all the same relied upon the said document, for ascertaining the character of possession of nabisaheb from the date of the said transaction. Relying upon a decision of this Court in K. Thimmiah v. B. H. Nanjanpa, (1965) 1 Mys. L. J. 44. Shri mandagi contended that the unregistered document Ext. 69 cannot be used to prove the character of possession. Shri Mandagi read to me the first portion of the head note, which reads as follows:"the fact that under Section 54 Transfer of Property Act, a sale of property of the value of less than Rs. 100 could be effected by mere delivery of possession does not mean that when parties choose to write out an instrument of sale, such an instrument need not be registered. The unregistered document cannot be u

Click Here to Read the rest of this document