Failure to plead non-registration precluded the appellate court from ruling on document admissibility, causing prejudice.

1. Proceedings of this matter have been taken - up for final hearing through video conferencing.

2. This plaintiffs "appellants'' (herein) second appeal was admitted for hearing by formulating the following substantial question of law, on 28-2 - 2020: -
"Whether the First Appellate Court was justified in holding that Batwaranama (Ex.P - 1) is inadmissible in evidence for want of registration under S.17 read with S.49 of the Registration Act, 1908 ignoring the fact that no such plea was taken by defendant No.8 before the trial Court, by recording a finding which is perverse to the record?"
[For the sake of convenience, parties will be referred hereinafter as per their status shown and nomenclature given in the plaint before the trial Court.]

3. The dispute relates to the suit property bearing Khasra No.7377/1, area 0.27 hectare, earlier owned by Chandulal Dewangan. It is the case of the plaintiffs that during the lifetime of Chandulal Dewangan, he partitioned all his properties to his six sons and one daughter and the suit property came in the share of Tijulal Dewangan (their father) vide Ex.P - 1 dated 6-1 - 1991, but defendant No.8 (Smt. Kamla Bai) taking the advantage of order dated 28-2-1994 got it mutated in her name on the basis of Ex.D - 1 which led to filing of suit by the plaintiffs / appellants herein seeking declaration and permanent injunction with regard to the aforesaid suit land in which defendant No.8 mainly setup the plea vide Ex.D - 1 that the suit land came in her share and therefore the plaintiffs, who are the legal representatives of Tijulal Dewangan, had no right and title over the suit land and therefore the suit be dismissed.

4. The trial Court relying upon Ex.P - 1 held that by Ex.P - 1 the suit property fell in the share of Tijulal Dewangan and the plaintiffs being the successors - in - interest of Tjulal Dewangan, have got the property and Ex.D - 1 is not reliable, it was never signed by the legal heirs of Chandulal Dewangan and therefore decreed the suit and declared the title of the plaintiffs and also directed for deletion of the name of defendant No.8 and entering the names of the plaintiffs.

5. Feeling aggrieved against the judgment and decree of the trial Court, only defendant No.8 preferred first appeal before the first appellate Court questioning the same. The first appellate Court by the impugned judgment and decree allowed the appeal solely on the ground that Ex.P - 1 requires registration and in view of the provisions contained in S.17 and S.49 of the Registration Act, 1908 , the document Ex.P - 1 is inadmissible in evidence, therefore, no title is conferred to the plaintiffs against which this second appeal has been preferred and substantial question of law has been formulated which has been incorporated in the opening paragraph of this judgment for the sake of completeness.

6. Mr. R.N. Jha, learned counsel appearing for the appellants herein / plaintiffs, in his written submission, has submitted that defendant No.8 did not expressly took the plea that Ex.P - 1 is unregistered and therefore it is not admissible in evidence, otherwise, the plaintiffs could have taken appropriate pleading, as Ex.P - 1 is only a document acknowledging the prior partition and it does not require registration and as such, in absence of plea having been taken, the first appellate Court has allowed the plea to be taken which has caused serious prejudice to the plaintiffs. Even otherwise, the plea of registrability of Ex.P - 1 is a mixed question of law and fact which ought to have been taken by appropriate pleading in the written statement and in view of that the second appeal deserves to be allowed and the impugned ju