Jwala Prasad, J.The plaintiffs are appellants in this second appeal. On 12th June 1923, they purchased the kasht land in suit measuring 9"1 acres, along with three decimals of homested land situate in mauza Dahiawan from Hari Charan Mahto and Misri Mahto owners of the property for a consideration of Rs. 1,175. On 17th June 1923, they attempted to take possession of the property but were resisted by the defendants who set up their possession by virtue of prior sales in their favour by the aforesaid owners of the property Hari Charan Mahto and Misri Mahto.

2. This led to a proceeding first u/s 144, Criminal P.C., which resulted in a notice being served upon the plaintiffs forbiding them to go near the land. That proceeding was followed by a proceeding u/s 145 of the Code. The Magistrate by his judgment of 14th August 1924, upheld the possession of the defendants, directing the plaintiffs to pay Rs. 325 as costs of the proceedings u/s 145 to the defendants. Hence the plaintiffs brought the suit out of which this appeal has arisen for a declaration of their title to and recovery of the properties in suit.

3. The defendants resisted the plaintiffs claim upon the ground that the properties in dispute were already sold to them so far back as in 1912 by means of three separate sale-deeds executed by Hari Charan Mahto and Misri Mahto and that possession was delivered to them by the vendors and that they had ever since been in possession thereof. The registered sale-deed of 12th June 1923, executed by the aforesaid vendors in favour of the plaintiffs did not confer any title upon them, inasmuch as on that date the vendors had no title left in them which they could convey to the plaintiffs.

4. The plaintiffs had impugned the unregistered sale-deeds set up by the defendants, but the Courts below have overruled the objection and have concurrently held that the vendors Hari Charan Mahto and Misri Mahto did execute the three sale-deeds set up by the defendants. The first Court of appeal also held, differing from the view taken by the Munsif, that possession of the properties were delivered to the defendants. On these findings the Court below has held that complete and indefeasible title passed to the defendants long before the registered sale-deed was executed by the vendors Hari Charan Mahto and Misri Mahto in favour of the plaintiffs and consequently the plaintiffs acquired nothing.

5. As a point of law it is contended by Mr. Sushil Madhab Mullick appearing for the plaintiffs that the aforesaid findings of fact arrived at by the Court below are not sufficient to defeat the plaintiffs claim. It is contended that the plaintiffs sale-deed being a registered document must take effect and prevail over the defendants unregistered sale-deeds.

6. The lands in dispute were sold to the defendants in three parcels for a consideration, in each of the sale-deeds, of less than Rs. 100. The sale-deeds were therefore not compulsorily registered under the Registration Act (Act 16 of 1908). These documents were thus not invalid for want of registration and were receivable in evidence of the transaction referred to therein. Section 49, Registration Act, under which a document required by Section 17 to be registered is not receivable as evidence, does not apply to the defendants sale-deeds in question, inasmuch as these documents were not required by Section 17 to be compulsorily registerable.

7. Therefore, the defendants sale-deeds are good evidence of the transaction between the vendors and the vendee set forth therein. Section 50 relied upon by Mr. Mullick also has no application. That section does not take into account the possession delivered under an unregistered document.

8. It refers only to registration or non-registration of documents and the competition between a registered and an un-registered document. Upon that question alone no doubt u/s 50 a registered document will take effect as against an unregistered document relating to the same property. It does not at all refer to a title which passes by means of delivery of possession.

9. In the present case the finding of the Court; below is that the defendants obtained possession of the properties, which were delivered to them by their vendors. The defendants title in this case is not based upon the unregistered sale deeds, which, are used only as evidence of the transaction and of the contract between the parties evidencing the terms upon which the properties were conveyed to the defendants by means of delivery of possession.

10. Section 48, Registration Act, makes it clear that a registered document shall take effect against an oral agreement or declaration relating to any property only when the said agreement or declaration has not been accompanied or followed by delivery of possession. Thus an oral agreement or an unregistered written agreement as to sale of a property followed by delivery of possession without any registered document with respect thereto shall affect the validity of the I subsequent sale of the same property. Reference has also been made to Section 91, Evidence Act, and it has been urged that the defendants are not permitted to prove their title by delivery of possession except by means of unregistered documents wherein the terms of sale between them have been set forth.

11. That section is wholly inapplicable. It does not debar in any way the proof of delivery of possession as the means of conveying the property. The defendants can use the unregistered documents in, proof of the terms of the contract or the transaction between their vendors and themselves. They cannot use the unregistered documents for the purpose of showing that the title passed to them by means of those documents.

12. An absolute sale of an immovable property of a value lass than Rs. 100 can be made only in two ways either by a registered instrument or by delivery of property: vide Section 54, T.P. Act. The defendants sale deeds cannot, therefore, pass title to them. They can only be used as proof of the terms of the contract between them and their vendors. But the title can pass to them by the vendors by delivery of possession of the property. The Court below says exactly the same thing in the following words:

No title can pass under these sale-deeds because they were not registered but the land could be sold by delivery of possession.

13. Having thus correctly laid the law the Court below examines the evidence and records the following finding:

I therefore feel no hesitation in accepting the evidence of tile witnesses examined on behalf of the defendant-appellant to prove that Bulak Mahton was put in possession of the land sometime after the execution of the kabalas and that he continued in possession of the same ever since then, specially when that evidence finds some sort of corroboration from the khasras Ex. A series and the Chaukidari assessment papers Ex. B series.

14. These latter documents are of 1319 and subsequent years, that is, from 1912 which very nearly approaches the time when the defendants sale deeds were executed. Therefore the defendants in this case obtained absolute and indefeasible title to the properties in dispute by delivery of possession in their favour long before the plaintiffs kabalas were executed and registered in 1923. The vendors having thus parted with their title in the property in question had nothing left with them to convey to the plaintiffs in 1923 by means of the registered sale-deed. The plaintiffs therefore purchased nothing and they are not entitled to any relief.

15. I have arrived at the aforesaid conclusion on a consideration of the law as embodied in the aforesaid sections of the Registration Act, and the Transfer of Property Act. The view is supported by a number of decisions all of which need not be quoted. It will be sufficient to refer to Juman v. Mohammad Nadineoz 21 C.W.N. 1149 and Daya Ram Vs. Sita Ram and Others . The earlier cases have been referred to in those decisions. Against these Mr. Mullick cited Kuppuswami Goundan v. Ghinnasicami Goundan AIR 1928 Mad. 546 . If that case held anything contrary to what I have stated above, I am not prepared to accept the view taken by the learned Judges in that Case.

16. It has also been contended that the learned Subordinate Judge has not come to a definite finding as to when the partition between Lokenath and Hari Charan took place as regards the property in dispute. The lands in dispute were recorded along with other lands in joint names of the aforesaid owners or their predecessor-in-title and their names have been recorded in the survey khatian of 1910-11. Subsequently there was a partition between the branch of of Hari Charan and that of Lokenath whereby the plots in dispute were allotted to the share of Hari Charan. The partition is admitted, but the Court below has not come to a definite finding as to when the partition took place, and Mr. Mulliok contends that the case should go back for a definite finding on the point.

17. In the view that I have taken of the case it is immaterial when the partition took place. It did certainly take place before the plaintiffs kabala of 1923 was executed and according to the finding of the Court below the defendants have been in possession of specific plots long before 1923. The question would have been important if it were necessary to find in this case whether the defendants title to the properties was perfected by adverse possession for twelve years. If that were necessary the case would certainly have been remanded for a definite finding both on the point as to when the partition took place as well as the date when the defendants actually came to be in possession of the properties. These facts, however, are not necessary in the view expressed above.

18. The result is that the suit has been rightly dismissed by the Court below, and the plaintiffs appeal is dismissed with costs.

James, J.

19. I agree.