This is the defendants second appeal arising out of a suit for possession of certain land measuring 14 Kanals and 10 Marias now included in Khasra Nos. 266/118 and 267/118.

The plaintiffs case is that they are the proprietors of the land, that the defendants were in permissive possession and have now started to claim adverse possession. The defendants relied upon a document dated 5th Chet 1973 for the contention that the land was sold to them out and out in that year and that their possession was not permissive. It was also pleaded that in the event of the sale deed being found to be invalid they were in adverse possession of the property and have acquired prescriptive title to it. Rupees five hundred were claimed as compensation for improvements effected by them on the land in the event of dispossession.

The trial Court held that the defendants were in adverse possession and dismissed the plaintiffs suit. The lower appellate Court upset that finding on the ground that the document dated 5th Chet 1973 was in fact an agreement to sell and not a saledeed arid that the defendants possession was permissive. It was also held that in the year 1973 when the transaction took place it was incumbent upon the vendor to obtain previous permission of the Raja Sahib of Poonch to transfer the property, that this law was changed in the year 1992 and that the defendants would be entitled to claim adverse possession only from after that date. In this view the lower appellate Court decreed the plaintiffs suit on payment of Rs. 200 the original consideration of the document.

It is contended on behalf of the appellants that the document in question is not an agreement to sell but an out and out sale-deed and that the finding of the lower appellate Court in this behalf is erroneous

The document-is on the record and is marked Ex. D(A). It is an old document couched in the form prevalent in those times. It proceeds on the basis of an out and out sale but ends by incorporating a condition of reentry. This condition has been subjected to various; interpretations and it will be profitable to reproduce it here in full: -

" Agar man baad ham is zamin par darea karen, to mableg mazkur do chandan. bajanab mushtariyan mazkur ada karne ke mustujab honge."

It is difficult to conceive how the lower appellate Court held that the document was not a sale deed but an agreement to sell. Learned counsel for the respondents would support this view on the ground that the document was not registered, that the previous permission of the Raja Sahib to the transfer was not obtained and that it contained what is called an indemnity clause reproduced above. If a document suffers from any legal defect by way of want of registration etc. the nature of that document would not change. All that would happen is that it would not be legally enforceable but what would in other respects be an out and out sale will not, because of want of registration or any other defect, become an agreement to sell. From the defects pointed out namely that the document was not registered, the permission of the Raja Sahib was not obtained and that it contained an indemnity clause, all that can be said was that the deed had remained in-effective and was not a valid sale-deed. An invalid document because of a defect does not become in some other form a valid document and to say that the document in question is a valid agreement of sale is an interpretation which is very difficult to accept.

Mr. Jaswant Singhs argument in the alternative is to the effect that because of the qualifying clause in the concluding portion of the document it is not an out and out sale but a mortgage with conditional sale. On the document before us it is very difficult to place this interpretation. The document starts by contemplating to he an out and out sale. This, however, is consistent with a document of mortgage with conditional sale because such a document also has to be ostensibly a sale-deed. But there the ismilarity ends. It

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