Hon’ble Pramod Kumar Srivastava, J.—Original Suit No. 631/2007 (Jagsain and others v. Dharamvir) was filed for relief of permanent injunction. The case of plaintiffs (present appellants) was that ownership of disputed property belonged to defendant, from whom plaintiffs had purchased disputed house for consideration 17 years ago by oral transaction, and came in its possession. But later on defendant No. 1 had executed registered sale-deed of said property in favour of defendants No. 2 and 3, who are trying to interfere in possession of plaintiffs. Therefore plaintiffs had filed suit for permanent injunction.

2. After service of summons, defendants had not appeared, therefore case proceeded ex parte against them. Then after accepting the evidence adduced by plaintiffs and affording them the opportunity of hearing, the trial Court had dismissed the original suit on merits by its judgment dated 24.7.2014. Aggrieved by it, plaintiffs had preferred civil appeal No. 24/2014, Jagsain and others v. Dharamvir and others. This appeal was heard and dismissed on merit by judgment dated 29.7.2015 of District Judge, Gautam Budh Nagar. Aggrieved by the judgments of two Courts below, present second appeal has been preferred by the plaintiffs of the original suit.

3. Learned counsel for the plaintiff-appellants contended that since the defendants-respondents had not appeared in original suit, therefore in the light of provisions of Order-VIII, Rule-5(2) CPC, the suit should have been decreed. This contention is legally unacceptable. The said provisions reads as under :

“(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.”

4. This contention of learned counsel for the appellants is incorrect that judgment in absence of pleading of the defendant must be pronounced by decreeing the suit. Every judgment should be passed on merits of the case. If trial Court finds that on facts of the plaint suit cannot be decreed then it shall be lawful for the Court to dismiss the same. If the Court finds that on facts of the plaint there is inability to grant relief to plaintiff, then it would be appropriate not to pronounce judgment but may require plaintiff to prove his case and, and then pronounce judgment on merit. In any case, every judgment has to be passed strictly on its merits.

5. In present case learned trial Court as well as learned first appellate Court had passed their judgments on merits, after affording opportunity of hearing. There appears no error, impropriety or illegality in the procedure adopted by the to Courts below.

6. Learned counsel for the appellants contended that two Courts below had not believed the uncontroverted and proved plaint case, therefore, their judgments are wrong. This contention is also totally erroneous. A perusal of the judgments of two Courts below reveal that both the Courts had believed the facts mentioned in the plaint of the suit to be true, but found that on the basis of those facts, plaintiffs are not entitled for any relief claimed, and his suit as well as the appeal should be dismissed. These judgments are strictly on merits, and has been passed after the application of judicial mind.

7. It is admitted legal position, as has been discussed by the lower Courts, that Section-17 of the Registration Act provides for the registration for transfer of immovable property, which is a mandatory pre-condition for transfer of any right or title in immovable property. In present case, plaintiffs-appellants had pleaded that they had obtained ownership on the basis of unregistered oral sale. Admittedly, the basis of right of disputed property is claimed by oral contract of sale. Such a transaction cannot create a right in immovable property unless it is registered under Section-17 of the Registrat