Shearer, J.The suit out of which this second appeal arises had its origin in a dispute concerning certain property in the town of Dumraon. The property in question consists of a row of shops at one end of which there is a number of rooms which at one time were occupied by the owner of the property or his agent. The property belonged, originally, to one Hakim Zahir who died in 1893. On his death, a dispute arose between his widow, Bibi Hasina, and his two daughters, Umat Fatma and Karamat, who were Bibi Hasinas step-daughters. Eventually, a compromise was entered into under which Bibi Hasina and her two stepdaughters each took an eight annas interest in the property. Umat Fatma and Karamat were also to make certain payments to Bibi Hasina and in order to find the money, they mortgaged their eight annas interest in the property to one Ahmad Ali. This mortgage was a mortgage with possession. At least from 1909, and probably from much earlier, the person in actual occupation of the property was one Jamal who was the husband of Umat Fatma.

2. Between 1909 and 1919 Jamal executed a number of rehan deeds, mortgaging, one after another, most of the shops. The mortgagee was, except in one case, one Shaikh Abdul Manan who was defendant 8 in the lower Court. Jamal died in 1925 and soon after, on 9th June 1926 Shaikh Abdul Manan took a conveyance of the property from his widow, Umat Fatma. The room or rooms which Jamal had occupied were, on his death, taken possession of by one Kamal who appears to have been a son of Jamal by a woman who was his concubine. On 27th July 1926 Shaik Abdul Manan instituted a suit for the ejectment of Kamal from the room or rooms which he was occupying. The litigation was protracted but, eventually, this suit was dismissed. During the pendency of the suit, on 4th October 1926 Sheikh Asgar Ali, defendant 2 in the lower Court, who was the son of Shaikh Ahmad Ali the mortgagee, took a conveyance of an eight annas interest in the property from the heirs of Bibi Hasina.

3. Nearly ten years later, on 10th May 1936 Shaikh Asgar Ali executed a sale deed conveying a four annas interest, out of the eight annas interest which he had purchased from the heirs of Bibi Hasina, to the appellant, Shaikh Muhammad Yakub. A month or so earlier on 13th April 1936 Shaikh Muhammad Yakub had taken in rehan a two annas interest from Samad, the husband of Bibi Karamat, who had died in or about 1896. Immediately after taking these conveyances, on 1st June 1936 Shaikh Muhammad Yakub instituted the present suit for the partition of the property. The suit was decreed by the trial Court; but on appeal, this decree was reversed by the learned District Judge of Shahabad.

4. The lower appellate Court dismissed the suit on two grounds. One of these grounds was that the vendor of the plaintiff, namely, Shaikh Asgar Ali had not been in a position to convey a good title to the property as the sale deed by which he himself had purchased it from the heirs of Bibi Hasina had not been validly registered. This sale deed purported to convey not merely the property in suit but also another property situated in Nabipur Ghaus in the district of Patna. It was in consequence registered at Patna and not at Buxar, as it would have been if the property in suit had alone been conveyed by it. There is intrinsic evidence in the sale deed itself which goes to show that, as originally written, it purported to convey merely this property in Dumraon and that, subsequently, it was altered so as to operate also as a conveyance of the property in Nabipur Ghaus which consisted of one dhur of land. The learned District Judge, in coming to conclusion that the deed had not been validly registered, relied upon certain decisions of the Privy Council. These and other decisions bearing on the construction of Section 28, Registration Act, 1908, have been considered and reviewed in a recent decision of this Court, Ramnandan Prasad Narain Singh v. Chandradip Narain Singh AIR 1940 Pat. 504 . The decisions fall under one or other of two categories.

5. There are in the first place, cases in which, in order to obtain the registration of a sale deed at a particular sub-registry office, mention was made in the sale deed either of property which did not in fact exist at all or of property which was described so vaguely that it could not be identified. This was the case in the earliest of the decisions of the Privy Council, Harendra Lal v. Haridasi Debi AIR 1914 P.C. 67 and in the recent decision of this Court, Ramnandan Prasad Singh Narain Singh v. Chandradip Narain Singh AIR 1940 Pat. 504 . Secondly, there are cases in which the property mentioned in the sale deeds actually existed, but was of such a nature that no effective use or enjoyment could be made of it. This was the case in AIR 1934 157 (Privy Council) and in AIR 1936 91 (Privy Council) . In the former case the property consisted of an undivided interest in a garden house and in the latter of a yard of land. Their Lordships of the Judicial Committee pointed out that, in the one case, no use could be made by the vendee of the garden-house, as his sale deed did not give him any means of access to it, and in the other that apart from its being quite impossible for the vendee to make any real use of the yard of land which he had purchased, the title of the vendors to it was extremely doubtful. Where certain of the property mentioned in a sale deed either does not exist at all or is property of which no effective use or enjoyment can be made, the sale deed cannot be said to relate to that property within the meaning of these words as they occur in Section 28, Registration Act. That, however, is not quite the position here. The land in Nabipur Ghaus was described with such particularity that there is no difficulty at all in identifying it; it belonged to the heirs of Bibi Hasina and undoubtedly, by the sale deed which they executed, the title to it passed to Shaikh Asgar Ali. Shaikh Asgar Ali gave evidence that he had purchased this land in order to use it as a burial ground and that one Bibi Mariam, a relation of his, had actually been buried in it.

6. The learned District Judge was not satisfied that there was any truth in this and was of opinion that Shaikh Asgar Ali never in fact took possession of this land and therefore, had never intended to take possession of it. There is no evidence of anything said or done at the time the sale deed was executed to show what the respective intentions of the vendors and vendee were and, if there were such evidence, the admissibility of it would, I think, be open to very serious doubt. Where the validity of a sale deed is impeached on the ground that it could not legally be registered in a particular sub-registry district, oral evidence may be adduced to show that the property in that sub-registry district which it purported to convey either did not exist or could not be ascertained with certainty, or if it did exist and could be ascertained, was of such a nature that no effective use or enjoyment could be made of it.

7. But, where the property exists and the title to it has undoubtedly passed to the vendee, oral evidence that the vendee intended not to take possession of it and ultimately to allow his title to it to be extinguished appears to be irrelevant. In Vishvanath Bhat Annabhat v. Mallappa Lingappa AIR 1925 Bom. 514 , Maclean C.J., refused to admit evidence of an oral agreement between the parties to a sale deed that the vendee should re-convey to the vendor that portion of the property which was situated within the sub-registry district in which the deed was registered. As the law stands there is nothing to prohibit a person conveying property in one district and residing and owning property in t another district asking the vendee to accept a conveyance also of some small property in the district in which he resides so that the sale deed may be registered there and he may not be put to the trouble and expense of a journey to the other district. In my opinion, it is not correct to say that this sale deed was not validly registered at Patna.

8. The other ground, however on which the learned District Judge dismissed the suit was that some time prior to the execution of the sale deed in favour of Shaikh Asgar Ali, the heirs of Bibi Hasina had been ousted by their co-owners from the property. Sheikh Abdul, Manan took a conveyance of the property from Umat Fatma on 9th June 1926, and on 27th July 1926, he instituted a suit for the ejectment of Kamal from the rooms which he was occupying and which had until his death been occupied by Jamal.

9. In this suit, Shaikh Abdul Manan did not ask for a declaration of his title to, or confirmation of possession over, the shops. The reason presumably, was that he was himself in possession of one, or perhaps two of the shops and anticipated no difficulty in realising rent from the occupants of the others. Jamal, it will be remembered, had executed four rehan deeds mortgaging some of the shops to him. It was not till 1930 that the suit instituted by Shaikh Manan was eventually dismissed. Kamal appears to have taken out a writ for delivery of possession over the rooms which were the subject-matter of that suit, and the writ appears to have been duly served. Soon after, however, Kamal disappeared and later this portion of the premises collapsed in the earth-quake. The learned District Judge came to the conclusion that between 1926, when Shaikh Abdul Manan took a conveyance of the property from Umat Fama and 1936, when this suit was instituted, Shaikh Abdul Manan was in possession of the property and the mortgagee Shaikh Asgar Ali, was not. I see no reason to doubt the correctness of this finding.

10. It is, I think, very probable that such rent as was paid by any of the occupants of the various shops during this period of ten years or so was in fact paid to Shaikh Abdul Manan. The present suit was however instituted within a period of twelve years from the date of the conveyance taken by Shaikh Abdul Manan from Umat Fatma and also within twelve years from the death of Jamal which occurred either in 1925 or in 1926. If therefore the plaintiff was in a position to show that, at the commencement of this period of twelve years, the heirs of Bibi Hasina were constructively in possession of their interest in the property, he was entitled to a decree. Now, at the commencement of this period, and for some little time thereafter the person in actual physical possession was Jamal. The crux of the matter is therefore this, what, at this time, was the position of Jamal Was he in possession of the property on his own account or on account of his wife, Umat Fatma, or was he in possession merely as an agent or manager, and if so, whose agent or manager was he There can I think be no doubt whatever that, in the first instance, Jamal entered into possession of the property as an agent or manager. Is there any reason to suppose that some time prior to his death the character of his possession changed The learned District Judge has attached great weight to the conduct of Jamal in executing the rehan deeds which he did in favour of one Chamru and, subsequently, in favour of Shaikh Abdul Manan.

11. In executing these rehan deeds Jamal was however purporting to act as the owner of the property and not as the mukhtar-am of his wife, Umat Fatma. That is clear from the recitals in the various deeds which in every case is similar and makes no mention whatever of Umat Fatma. On behalf of Shaikh Abdul Manan, a number of persons who had at one time or another occupied one of the shops were put into the witness-box. Only one of these men, Kesho Prasad (D.W. 5) ventured to say that Jamal was in possession of the property as the agent of his wife, Umat Fatma, and immediately after saying so he retracted the statement and said that he did not know what exactly the position of Jamal had been. Immediately prior to his death, Jamal seems to have executed a rehan deed mortgaging the remaining shops to Shaikh Abdul Manan. This deed could not however be registered before Jamal died. That presumably was why Shaikh Abdul Manan took a conveyance of the entire property from his widow, Umat Fatma. The mere circumstance that he took this conveyance does not and cannot lead to any presumption that, in executing the previous rehan deeds, Jamal was acting as the mukhtaram of his wife. Not only do the deeds themselves contain a recital to the contrary, but it is in evidence that, after taking his conveyance from Umat Fatma, Shaikh Abdul Manan paid into Court the money due to Shaikh Asgar Ali on his mortgage. The question whether the mortgage of Shaikh Asgar Ali still subsisted was directly raised in the prior suit and was decided in the affirmative.

12. The learned District Judge has expressed the opinion that this decision did not operate as res judicata. Whether or not it did so operate, the decision was however on the evidence now adduced, correct. The learned District Judge does not himself appear to be of a contrary opinion. If Jamal, while in possession of the property as an agent or manager of the mortgagee, Shaikh Asgar Ali, obtained money, from Shaikh Abdul Manan and Chamru Khan by mortgaging portions of the property to them, that by itself is not enough to show that he was asserting a title to the property in himself and was claiming it adversely to his employer. Shaikh Abdul Manan does not appear to have believed that Jamal had acquired a good title to the property by adverse possession, as, on his death, not only did he take a conveyance from his widow, Umat Fatma, but he showed himself ready to redeem the mortgage of Shaikh Asgar Ali. Shaikh Asgar Ali does not reside in Dumraon but he belongs to a village in the District of Shahabad and, in his evidence, said that he had to go to Dumraon frequently to catch the train and that, when he went there, he often stayed in this house., There is, I think, no good reason to distrust this evidence. One Abdul Hai gave evidence that Jamal was the agent or servant of Bibi Hasina and her heirs as well as of Shaikh Ahmad Ali Khan. Again, I can see no reason to distrust this statement. Jamal was related to Bibi Hasina and also to Shaikh Ahmad Ali Khan. The learned District Judge has attached great weight to the circumstance that no evidence was adduced to show that Bibi Hasina and her heirs had ever derived any income from the property. The rents paid by the shopkeepers were, however, small, amounting apparently to rather less than Rs. 20 a month and, very possibly, out of this repairs had occasionally to be done and municipal or other taxes paid. Moreover, it is a long time since Jamal died and the heirs of Bibi Hasina may have found it impossible to produce documentary evidence to show what remittances were made to them by Jamal from time to time.

13. Even however assuming that over a long period Jamal had appropriated the whole of the income which should have been remitted to Bibi Hasina and her heirs, is that really material No doubt, if Jamal had himself been a co-owner, or if Umat Fatma had not mortgaged the property and Jamal had been in possession of it as her mukhtaram, then his conduct in appropriating the whole of Bibi Hasinas share of the income might perhaps have been regarded as sufficient evidence of an ouster.

14. The lower appellate Court has, however, in my opinion, misdirected itself in supposing that this is a case in which one of two co-owners has been in exclusive possession, and the question that arises is whether or not the other co-owner has been ousted. The learned District Judge has omitted to notice that Jamal was a mere servant or agent and therefore had no possession of his own. Certainly, until his death, his possession was the possession of the mortgagee, Shaikh Asgar Ali, and, as Shaikh Asgar Ali took a conveyance of their interest from the heirs of Bibi Hasina, it is clear that he regarded the possession of Jamal as having also been the possession of the heirs of Bibi Hasina. The plaintiff, in my opinion, thus succeeded in showing that the persons from whom he derived his title were constructively in possession of the property within twelve years before the suit was instituted. For these reasons I would allow the appeal with costs throughout and restore the decree of the trial Court.

Fazl Ali, J.

I agree.