The validity of an unregistered Exchange Deed and the sufficiency of evidence of possession.

The appellants have filed this appeal being aggrieved by the judgment and decree dated 24-1-1997 passed by the Additional District Judge, Umaria, District Shahdol in First Appeal No. 7-A/95 by which he has reversed the judgment and decree dated 29-4-1995 passed by the Civil Judge Class-II, Umaria, in Civil Suit No. 41-A/1991, dismissing the suit filed by the respondent/plaintiffs.

2. The brief facts, leading to the filing of the present appeal, are that the respondent/plaintiffs had filed a suit for declaration of title, possession, permanent injunction and mesne profit in respect of Khasra No. 2148, area 2.37 decimal of village Chilhari, Tehsil Bandhavgarh, District Shahdol, on the ground that they had become the owner of the said land on account of an Exchange Deed executed between their father and defendant No. 1 who is the present appellant and is now represented through his legal representatives.

The trial Court dismissed the suit filed by the respondent/plaintiffs by recording a finding to the effect that the Exchange Deed, Exhibit P-l, was unregistered and therefore did not confer any right or title on the respondent/plaintiffs and that they have failed to establish that they were in possession of Khasra No. 2148.

The First Appellate Court, by the impugned judgment and decree, has set aside the judgment of the trial Court by recording a finding to the effect that Exhibit P-1, the alleged Exchange Deed was 30 years old and, therefore, had to be believed and that there was ambiguity between the evidence of the parties regarding possession and in such circumstances has allowed the appeal.

3. The appeal, filed by the appellants, was admitted by this Court on the following substantial questions of law : -

"1. Whether in the facts and circumstances of the case, the learned District Judge, was justified in exercising his discretion for the purposes of drawing presumption under section 90 of the Evidence Act, when the same was not done by the trial Court ?

2. Whether in view of the facts and circumstances of the case, the learned District Judge, was justified in holding on the basis of Ex.P. 1 that plaintiffs became the owner of suit land (Khasra No. 2148) on the basis of an exchange ?

3. Whether in view of the facts and circumstances of the case, the appellant continues to be the Bhumiswami of suit land, i.e. Khasra No. 2148 area 3.27 Decimal ?"

4. The learned counsel for the appellants has submitted and urged that the Appellate Court has grossly erred in law by drawing a presumption in respect of Exhibit P-l by taking aid of section 90 of the Evidence Act (hereinafter referred to as 'the Act'), as the said provision was not attracted in the present case on account of the fact that the respondent/plaintiffs had failed to establish that the document was 30 years old and that the original defendant Shankerlal, who is said to have written and signed the document, has himself denied signing or writing the same. The learned counsel for the appellants has further urged that Exhibit P-l, which is said to be an Exchange Deed, was required to be compulsorily registered but as the said document is unregistered, it does not confer any right or title upon the respondent/plaintiffs nor was it ever acted upon and in such circumstances the Appellate Court has erred in believing the said document and decreeing the suit filed by the respondent/plaintiffs by placing reliance on the same.

5. The learned counsel for the appellants has also urged that the evidence on record indicates that the appellant/defendants were in possession of the land and in such circumstances the suit filed by the respondent/plaintiffs should have been dismissed.

6. The learned counsel for the respondents, per contra, submits that the Exchange Deed, Exhibit P-1, was recorded by the original defendant No. 1 Shankerlal on 8 Kunwar Bhadra Samvat 1999 and pursuant to the said Exchange Deed the respondent/plaintiffs were placed in possession of Khasra No. 2148 while the origi