The necessity of a registered instrument for transferring title under T.P. Act, Section 54.

Pollock, J—In 1925 Imrat, the father of the defendants, borrowed Rs. 1000 from the plaintiffs and as security mortgaged 28.95 acres of absolute occupancy land in mauza Jhalone. In 1982 the plaintiffs brought a suit on this mortgage, and Imrat thereafter applied to the Debt Conciliation Board. On 25-9-1936 the plaintiffs and Imrat informed the Board that they had agreed that the plaintiffs should take a sale deed of absolute occupancy fields No. 265, area 4.25 acres, and No. 80, area 12.61 acres, out of the mortgaged land in settlement of their claim and leave the rest of the mortgaged land to Imrat.

2. The Board considered this a very fair settlement and directed them to get a gale deed executed and registered: see Ex. D-6. A sale deed (Ex. P-1) was accordingly executed on 28-10-1986 by which Imrat purported to sell two of his mortgaged fields for Rs. 1700, which was apparently the sum that the Board decided should be payable on the mortgage. The fields sold were described as No. 265/1, area 4. 25 acres, rent Rs. 9, and No. 80/2, area 12. 61 acres, rent Rs. 18; and there was this condition in the sale deed that Imrat should retain possession until the crops were cut and the plaintiffs should be put in possession in April 1987. Shortly afterwards a decree was passed in the mortgage suit in accordance with this compromise, though the decree is not before me.

3. The plaintiffs' case is that they agreed to take fields known as Kachhar and Gohari in settlement of their claim, that these fields are 267/1, area 2.60 acres, rent Rs. 6, and No. 80/2, and that by mistake. No. 265/1 known as Sotawala was entered in the various documents instead of 267/1.

4. They alleged, however, that in execution of the decree they were placed in possession of No. 267/1 in April 1937 and remained in undisturbed possession until June 1940 when the defendants began to assert a claim to it. The plaintiffs accordingly filed this suit for a declaration of their title to No. 267/1 and also for an injunction restraining the defendants from disturbing their possession or for possession, according as it might be found that the plaintiffs were in or out of possession.

5. The plaintiffs were admittedly in possession of No. 267/1 from April or May 1937 to about June, 1940 but the defendants contend that there was no mistake in the sale-deed, that it was No. 265/1 and not No. 267/1 that was sold, and that possession of No. 267/1 was given to the plaintiffs in May 1937 in settlement of a debt. The defendants said that they had borrowed 4 manis of grain shortly after the execution of the sale-deed on 23rd October 1936 with a promise to repay 5 manis in the following May, and that as they were unable to make this repayment they let out No. 267/1 to the plaintiffs for three years in settlement of this debt.

6. The lower appellate Court, differing from the trial Court, held that the compromise between the parties was to sell Nos. 267/1 and 80/2 and that No. 265/1 was entered by mistake for 267/1. That, of course, is a finding of fact, but Mr. Dabir in the course of an able and exhaustive argument contended that that finding, is not binding on me in second appeal on the ground that the lower appellate Court failed to appreciate and determine questions of fact which vitally affected the issue, in the words of Lord Clauson in Rahmat Ilahi v. Md. Hayat Khan

7. The points said to have been overlooked by the lower appellate Court are that the defendants paid the rent for No. 267/1 throughout as evidenced by Ex. D-1, that the plaintiffs were in possession of No. 265/1, throughout, and that the plaintiffs admittedly knew 8 days before the sale that the rent of Kachhar field (No. 267/1) was Rs. 9. Exhibit D-1, which has not been translated and is not in the paper-book, does not appear to contain the numbers of the fields for which rent was paid. No. 266/1 was admittedly under grass and uncultivated, and the evidence of possession is slender and contradictory; the trial Court he