An unregistered sale deed is admissible in evidence to explain the nature and character of the possession held by the party.

Narayan, J.

1. The plaintiff is the appellant, and the appeal arises out of a suit for partition. The plaintiff claims to be the purchaser of one-half share in 31 bighas of land which are the subject-matter of the suit and which are recorded in khatian No. 171 of the survey record. The plaintiffs allegation is that she had purchased the one-half share belonging to the sons of Arjun and the grandsons of Hridaya. The lands had been recorded in the survey in the names of Arjun and Nagar, the father of Arjun aad Nagar being first cousin. The defendant is the son of Nagar, and according to the plaintiffs allegation the sons of Arjun were in possession of the one-half share until the transfer of it to her through a sale deed dated 5-6-1944.

2. The defendant contested the suit on the pleas that Sashi and Moti the two sons of Arjun, had no interest in the property and were never in possession thereof and that Arjun had in his own lifetime sold his one-half share in the khata to Nagar through an unregistered document dated the 17th Jaistha 1321 B. S., which would correspond to May 1914, and had left the village for good. According to the defendants allegation he and his father had been in possession of the entire khata even since the year 1914.

3. The Court of first instance had once dismissed this suit, & on an appeal having been preferred by the plaintiff against its decision there was a remand of the suit with the direction that the suit should be decided afresh after taking the sale-deed propounded by the defendant into evidence. After the remand, the document of sale propounded by the defendant was admitted into evidence, and the decision which had been originally arrived at, was reaffirmed by the learned Munsif. The plaintiff again preferred an appeal to the District Judge, and the appeal was heard by Mr. S.B. Ahmad, Additional Subordinate Judge, Purulia, who agreed with the learned Munsif that ever since the year 1321 B. S. the defendant had been in possession of the entire khata.

4. Mr. R.S. Chatterji appearing for the plaintiff-appellant has contended that the document ot" sale propounded by the defendant should not have been admitted into evidence because it was unregistered and an unstamped document and was also hit by Sec. 46, Chotanagpur Tenancy Act. The learned counsel has further submitted that if this document is left out of consideration, then the possession of the defendant or his father over the interest which was once possessed by Arjun and his sons cannot be deemed to be adverse.

5. There is no difficulty in repelling the contention that the document should be rejected because it is unstamped. Sec.36, Stamp Act, lays down that where an instrument has been admitted, in evidence, such admission shall not, except as provided in Sec. 61. be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Mr. Chatterji has contended that if the document has been admitted after objection, this section will not apply. Firstly, it is now settled by several authoritative decisions that Sec.36 would be applicable whether the document has been admitted with or without objection. This was the view taken by a Division Bench of this Court as early Els in 1927 -- Jagdip Singh V/s. Firangi Singh, AIR 1928 Pat 155 (A). Rankin C. J. in -- Nirode Basini V/s. Sital Chandra, AIR, 1930 Cal 577 (1) (B), observed as follows:

"On the merits of the appeal, it appears to me that Sec.36, Stamp Act, makes it reasonably clear that the instrument having once been admitted in evidence is not to be called in question at any stage of the same suit. The special Judge has seen this section but has thought to avoid the consequence of it by taking notice of an affidavit in which it is said that the tenure-holders did object when the document was tendered and that there was a discussion as to its admissibility. The learned Judge has entirely failed to see that, under Sec.36, it matters n