Madiammal v. Glory Chandrakantha

1. The plaintiff, who succeeded in the trial Court but lost in the lower appellate Court, is the appellant. She filed the suit for declaration of her title to the suit property which is one acre of land with a terraced building in S. No. 153/6 of Jegathala Village in Coonoor Taluk and for a permanent injunction restraining the respondent from interfering with her possession of the property. Her case is that the suit property was purchased for Rs. 8,000 under Exhibit B-5, dated 8th December, I9I4, by her brother, Mutha Gowder (P.W 1) and one Boja Gowder, the tather of Sevanan (D.W. 1), who were partners of 'Mutha Gowder and Company'. There was a partition subsequent to the death of Boja Gowder in the begining of 1957 after dissolution of the partnership had taken place prior to 1957 between P.W. 1 and D.W. 1 on 1st December, 1957 According to the appellant, Exhibit A-1 dated 1st December, I957, which is unregistered is a partition list signed by P.W. 1 and D.W. 1 as well as the panchayatdars at whose instance the assets of the partnership were divided. Subsequently Mutha Gowder P.W. 1 gifted the suit property to the appellant under Exhibit A-4 dated 15th December, 1965 and she was in possession and enjoyment of the property since that date. But the respondent (D.W. 4) had taken the sale-deed, Exhibit B-8, dated 9th October, 1968, from D.W. 1 in respect of an undivided half-share in the suit property. Taking advantage of that sale-deed, D.W. 4 attempted to interfere with the appellant's possession of the suit property. The appellant claimed to have leased the cultivable land and to be living in the downstairs portion of the building. She alleged that the suit property is comprised in patta No. 460 and prayed for declaration and injunction.

2. The respondent denied that the suit property was purchased by the partnership, Mutha Gowder, as alleged in the plaint and contended that the property was purchased by P.W. 1 and Boja Gowder under Exhibit B-5 in their individual capacity. She put the appellant to proof of the existence of the partnership and its dissolution, as well as the allotment of the suit property to Mutha Gowder and contended that Mutha Gowder was entitled only to a moiety in the suit property and had no right to deal with it in its entirety. She claimed to have purchased Boja Gowder's half-share in the property under Exhibit B-8 and to have taken possession of her share on the south and to be exercising acts of cultivation and she contended that the appellant is only a co-owner who could sue only for partition and not for injunction.

3. The purchase of the suit property under Exhibit B-5 by Mutha Gowder (P.W. 1) and Boja Gowder and the execution of Exhibit A-1 by P.W. 1 and Boja Gawder's eldest son (D.W. 1) were admited before the learned Subordinate Judge who tried the suit. The respondent (D.W. 4) objected to the admission of Exhibit A-1 in evidence for want of stamp and registration. But the learned Subordinate Judge, however, admitted it in evidence and considered only the question of its admissibility for want of registration. He found that P.W. 1 and D.W. 1 had not executed any arbitration muchalika in favour of their friends who acted as panchayatdars and that Exhibit A-1 was neither an award nor a partition-deed, but only a memorandum or list of a previously accomplished partition which had been acted upon and was admissible in evidence and that the suit property fell to the share of P.W. 1 in that partition and the appellant became the owner of the suit property by virtue of the gift under Exhibit A-4. He also found that the appellant was in possession and decreed the suit as prayed for with costs'

4. But, on appeal, the learned Additional District Judge found that in the prior suit, O.S. No. 59 of 1961 filed by D.W. 1 against P.W. 1 and another for including his name as a sharer to a moiety of the share taken in the name of P.W. 1 in 'N.M.T. Transport,' on the basis of an agreement, dated 1st December, 1957, P.W. 1 denied any agreement dated, 1st December, 1957, and that it was, therefore, not open to P.W. 1 to base any claim on Exhibit A-1 subsequently. He further found that the partition of the partnership assets on dissolution of the partnership of P.W. 1. and D.W. 1's father was made only under Exhibit A-1 and that Exhibit A-1 is a partition deed requiring registration and that' it could not be admitted in evidence for want of registration. He found that the appellant had not proved her exclusive title to the suit property and her exclusive possession thereof and that, on the other hand, the respondent had proved her title to a half share and her possession of the property as a co-owner. On these findings he allowed the appeal with costs throughout.

5. The suit property called "Aravankadu Building" forms item 4 in Exhibit A-1 which is to the effect that P.W. 1 should take it and pay Rs. 5,000 to D.W. 1. Pallivasal Veedu, forming item 3 in Exhibit A-1 should go according to it, to D.W. 1, who should pay Rs. 2,000 to P.W. 1 for taking it. D.W. 1 has admitted that he bad subsequently sold away this property to a third party under Exhibit A-2, dated 28th May, 1960. Exhibit A-1 is to the effect that some other properties would have to be divided in moieties subsequently. Therefore, if there had been a partition between P.W. 1 and D.W. 1, who is stated to have represented his father in the partition, of the assets of the dissolved firm 'Mutha Gowder & Company' and Exhibit A-1 is admissible in evidence, it would be clear that P.W. 1 would have had exclusive title to the suit property before he gifted it to the appellant under Exhibit A-4, dated 15th December, 1965. The respondent had put the appellant to proof of not only the existence of the partnership firm but also of its dissolution and allotment of the suit property to P.W. 1. P.W. 1 has stated in his evidence that the suit property belonged to himself and Boja Gowder by right of purchase and they were carrying on partnership business. He has also stated that the partnership had come to an end in about 1956 and that after the death of Boja Gowder there was a partition of the assets of the partnership and that the suit property fell to his share in that partition effected in the presence of panchayatdars between himself and P.W. 1. He has stated that Exhibit A-1 is a list signed by himself and D.W. 1 as well as by the panchayatdars. He has admitted that the partition was effected only on 1st December, 1957, as decided by the panchayatdars and that there is no partition-deed apart from Exhibit A-1. D.W. 1 had stated in his examination-in-chief that no partition had yet been effected although Exhibit A-1 had been executed and that there was no partition prior to Exhibit A-1. He had also stated that he had a half share in the suit property until he sold it to the respondent under Exhibit B-8. But in his cross-examination he has admitted that he and P.W. 1 put their signatures under each item in Exhibit A-1 after the completion of the discussion in respect of each item, that he took over the tea-shop mentioned as item 1 in Exhibit A-1 and carried on the business solely from 1958 as per Exhibit A-1, that he is exclusive possession of the commission shop forming item 8 in Exhibit A-1 and that he had not obtained the signature of P.W. 1 in the sale-deed executed by him in favour of a third party in respect of Pallivasal Veedu forming item 3 in Exhibit A-1. He has added that Exhibit A-1 has not been acted upon only in respect of the suit property. The evidence of P.W. 1 and D.W. 1 establishes that the assets of the partnership had been divided between them and the partition had been accepted and agreed upon by both of them P.W. 1 had executed the settlement deed, Exhibit A-4, in respect of the entire suit property in favour of the appellant. The appellant would have title to the suit property by virtue of the gift under Exhibit A-4 if P.W. 1 had become the exclusive owner of the property which had been purchased by himself and the other partner Boja Gowder by reason of the said partition.

6. The learned Subordinate Judge held on a consideration of the evidence, that the appellant was in possession of the suit property on the date of the suit. The respondent has admitted in her evidence that possession of the house had not been handed over to her in pursuance of the sale under Exhibit B-8 and that the appellant's son, P.W. 5, is living in a portion of the building and had rented out the other portion. The learned Subordinate Judge rightly disbelieved the evidence of D.W. 4 that she is cultivating a portion of the cultivable portion of the suit property having regard to the fact that the respondent claimed to be in passession of the southern half of the land while the sale-deed, Exhibit B-8, is in respect of an undivided half-share in the suit property. A part from the oral evidence on the side of the appellant there are the kist receipts (Exhibit A-5 series) and house-tax receipts (Exhibit A-6 series). There is no dispute that the suit land is comprised in patta No. 460. Exhibit A-5 series shows that both Mutha Gowder and Sevanan (P.W. 1 and D.W. 1) paid the kist for the suit property for faslis 1373 to 1376 and that the appellant had paid kist for the property for fasli 1378. The house-tax receipts (Exhibit A 6 Series) show payment of property tax for the house by the appellant for some half-years from 1966 to 1968. The respondent, who was admittedly aware at the time of her purchaae under Exhibit B-8 that the suit building stood in the name of the appellant in the municipal records, did not ask D.W. 1 as to how it happened to be so and had taken the sale-deed, Exhibit B-8, with full knowledge of the fact that P.W. 1 had already executed the gift-deed Exhibit A-4, in favour of the appellant, and has not produced any kist receipt or house-tax receipt to show her possession of the suit property. The learned Sub-ordinate Judge was, therefore, perfectly justified in rejecting the oral evidence on the side of the respondent and accepting the evidence on the side of the appellant and holding that the appellant was in possession of the suit property on the date of the suit, without attaching much significance to the complaint, the original of Exhibit B-7, given by P.W. 5 to the Sub-Inspector of Police, Aravankadu, that she saw the respondent trying to exercise acts of cultivation on a portion of the suit-land which was lying fallow after both the parties has given an undertaking before the Inspector of Police, Goonoor, that nobody should enter on the land until he came and inspected the same. Exhibit B-7 would not amount to any admission of the respondent's possession of the suit property. Under the circumstances, the finding of the learned Additional District Judge that the appellant had not proved her exclusive possession of the suit property is not at all acceptable. I agree 'with the learned Subordinate Judge and find that the appellant was in possession of the suit property on the date of the suit.

7. The suit property had been purchased under Exhibit B-5, dated 8th December, 1944, by P.W. 1 and D.W. 1's father, Boja Gowder, who indisputably, were partners of Mutha Gowder & Company at that time. The evidence of P.W. 1 that the partnership properties were divided subsequent to the dissolution of the partnership after the death of Boja Gowder on 1st December, 1957, has not been challenged in cross-examination. The respondent has not disputed the allegation in the plaint that Boja Gowder died early in Ia.57. The partition was, therefore, between P.W. 1, one of the partners of the dissolved firm, and D.W. 1, the eldest son of the other deceased partner. This is also made clear by Exhibit A-1 which reads:

The evidence of P.W. 1 is only to the effect that at the instance of the Panchayatdars he and D.W. 1 got the assets of the dissolved firm divided and not that the panchayatdars themselves effected the division and he and D W 1 accepted the same. As already stated, P.W. 1 has admitted in his evidence that the partition was effected only on 1st December, 1957 and that there is no other document evidencing the partition except Exhibit A-1. No doubt the evidence of D.W. 1 shows that he and P.W. 1 put their signatures under each item after a settlement was reached in regard thereto by discussion. But it is not possible to infer that the partition of the assets of the dissolved firm was prior in point of the time and dissociated in any way from Exhibit A-1. As regards the suit property and Pallivasal Veedu it is stated in Exhibit A-1 that D.W. 1 should take Pallivasal Veedu and pay Rs. 2,000 to P.W. 1 and that P.W. 1 should take the suit properly and pay Rs. 5,000 to D.W. 1. Therefore, I agree with the learned Additional District Judge that the partition has been effected only under Exhibit A 1 and that it required registration as a partition-deed if it did not relate to the division of the assets of the dissolved firm between a partner and the representative of the deceased partner.

8. The learned Counsel for the appellant submitted that Exhibit A-1 is only a list of a previously accomplished partition and that it does not require registration. In this connection he relied upon the decision of the Privy Council in Bageshwai Charan v. Jagarnath Kurai 62 M.L.J. 296 : 59 I.A. 130 : 136 I.C. 798 : A.I.R. 1932 P.C. 55 where it is observed:

In the case of Jiwan Ali Beg v. Bana Mai (1887) I.L.R. 9 All. 108 the head-note accurately sets forth one of the points in the case:

'An instrument to come within Section I7(b), Registration Act (III of I877), must in itself purport or operate to create, declare, assign, limit or extinguish some right, title or interest of the value of Rs. 100 or upwards in immovable property.' Then in the case of Ranganayaki Ammal v. Virupakshee Rao Naidu (1923) 45 M.L.J. 100 : 17 L.W. 588 : 72 I.C. 456 : A.I.R. 1923 Mad. 621 the learned Judge in the High Court expressly cited the words of West, J., in Krishnagi's case (1880) I.L.R. 5 Bom. 232 and in the case of Baldeo Singh v. Udal Singh A.I.R. 1921 All. 248 precisely the same thing is done.

Their Lordships have no doubt that this track of decision is right. Though the word 'declare' might be given a wider meaning, they are satisfied that the view originally taken by West, J. is right. The distinction is between a mere recital of a fact and something which in itself creates a title. The distinction has been acted on in cases connected with mortgages by deposit of documents of title.... In the present case the statement in the petition of the respondent did not create any right in the Thakur. It merely acknowledged as a fact that such right was his. There was therefore no necessity for registration.

The question in that case was whether a particular statement in the petition signed by the maker amounted to an acknowledgment of liability within the meaning of Section 19 of the Limitation Act.

This decision will not help the appellant, having regard to the fact that the lower appellate Court found, and I agree with it, that the partition was effected only under Exhibit A-1 and that it is not a list of properties which had been previously divided.

9. The other decision relied on by the learned Counsel for the appellant is of the Supreme Court in Nachiappa v. Subramaniam . There it is observed;

In Sakharam Krishnaji v. Madan Krishnaji (1880) I.L.R. 5 Bom. 232 West J., had observed that the word 'declare' in Section I7(1)(b) is placed along with 'create', 'assign' 'limit' or 'extinguish' a right, title or interest, and these wordsimplya definite change of legal relation to the property by an expression of will embodied in the document referred to, and had added that he thought that it is equally the case with the word 'declare'. On the other hand, certain other decisions had construed the word 'declare' liberally in a very wide sense and it was on those decisions that the objection against admissibility of the petition was founded. In repelling the objection Lord Dunedin observed that 'though the word "declare" might be given a wider meaning they are satisfied that the view originally taken by West, J., is right. The distinction is between a mere recital of fact and something which in itself creates a title.

This decision also will not help the appellant, as there is no partition dissociated from Exhibit A-1 in point of time.

10.The third decision relied on by the learned Counsel for the appellant is of the Supreme Court in Kashinathsa v. Naraingasa where it is observed:

The records made by the Panchas were documents which merely acknowledged partitions already made and were not by law required to be registered. On a perusal of Exhibit 456-A which is a translation of the Tippan book in which are recorded the decisions which are signed by the parties, it is evident that the Panchas were merely recording what had been actually divided and they were not seeking to set out their decisions relating to division of property to be made.

This decision also would not apply to the facts of the present case where the panchayatdars appear to have merely advised P.W. 1 and D.W. 1 to have the assets of the dissolved firm divided and had not themselves actually divided the same, and there was no prior partition.

11. The learned Counsel for the appellant submitted that Exhibit A-1 is only a list showing the division of the assets of the dissolved firm between a partner and the representative of the deceased partner, having regard to the provisions of Section 22 of the Indian Partnership Act, which lays down that where land or any beneficial interest therein has become partnership property, it shall, unless the contrary intention appears, be treated, as between the partners including the representatives of a deceased partner and also as between the heirs of a deceased partner and his executors or administrator!, as personal or movable and not real or heritable estate. Having regard to the fact that the suit property had been purchased by P.W. 1, and D.W.1's father Boja Gowder under Exhibit B-5 on 8th December, 1944, when they were partners of 'Mutha Gowder & Company' and it is seen from not only Exhibit A-1 but also from the evidence of P.W. 1 and D.W. 1 that even this item of property had been divided between them after the death of Boja Gowder which had taken place subsequent to the dissolution of the firm, the suit property must have been a partnership asset. Therefore, it is not possible to agree with the learned Counsel for the respondent that it was not an asset of the dissolved firm.

12. The learned Counsel for the respondent relied upon a decision of a Bench of this Court in Ramappa v. Thirumalappa I.L.R. (1939) Mad. 971 : (1939) 2 M.L.J. 649 : 60 L.W. 331 : A.I.R. 1939 Mad. 884 where it is observed:

When allotting on a dissolution what remains after making provision for the firm's debts and the remaining assets include immovable properties, it does not follow that the partners will take the immovable properties in equal shares, even if they had equal rights in the partnership. What each partner receive's will depend on the circumstances and the nature of the assets which remain for division. A partner, for instance, may have overdrawn his account and disentitled himself to equal rights, but it might have been otherwise. Exhibit A was drawn up and signed in order that the post-dissolution rights should be declared and placed beyond dispute. In our opinion, the declaration clearly falls within Section 17, Registration Act, which means that the document cannot now be admitted in evidence (by reason of non-registration).

This decision is referred to in the decision of the Supreme Court in Narayanappa v. Bhaskara Krishnappa , which will be referred to presently and though not specifically dissented from, must in my opinion, be deemed to have been dissented from. In that decision a different view has been expressed by the Supreme Court.

13. The next decision relied on by the learned Counsel for the respondent is of the Supreme Court in Ratan Lal Sharma v. Purshottam Harit. where the partners of a firm fell out and agreed to refer their disputes to two arbitrators. The arbitrators gave an award which expressly made an exclusive allotment of the partnership assets, including the factory and liabilities between the partners in consideration of a sum of Rs. 17,000 and another sum to the other on his renouncement of the right to share in the firm. So in express words the award purported to create rights in immovable property worth above Rs. 100 in favour Of the other partner and it has been held that it therefore required registration and was inadmissible in evidence for want of registration. This decision will not apply to the facts of the present case where there is no award of the arbitrators and all the assets of the dissolved firm had not been transferred to one of the partners on payment of any money to the share of the other partner or his representative. A Full Bench of the Andhra Pradesh High Court expressed the following view in A. Narayanappa v. B. Krishtappa In determining whether transfers of shares of partnerships which hold immovable property among other assets, require registration the Court must be influenced by the policy of the Partnership Act. The legal conception of the share of a partner in a partnership cannot be assessed in our opinion by reference to the possibility of his getting a share in the immovable property possessed by the partnership, for his getting a share in the immovable property is only an uncertain factor.... The interest in a partnership asset cannot be regarded as a right or interest in immovable property within the meaning Section 17(1)(5) of the Registration Act.

After the expression of this view by the Full Bench, the learned Judge who disposed of the Second Appeal observed:

The Full Bench has held that the interest of a partner in partnership assets cannot be regarded as a right or interest in immovble property within the meaning of Section I7(1)(b) of the Registration Act. It follows that in so far as there is a relinquishment of their interest in the suit firm by the plaintiffs and, defendants 10 to 12 who executed Exhibit B-18, the document does not rquire registration.

In Narayanappa v. Bhaskara Krishnappa which arose out of that decision the Supreme Court has observed:

While it is true that the position so far as third persons are concerned would be different it may be pointed out that in Forbes v. Steven (1870) 10 Eq. 178 James V.C. has, as quoted by the learned Judge, said: It has long been the settled law of this Court that real estate bought or acquired by a partnership for partnership purposes (in the absence of some controlling agreement or direction to the contrary) is, as between the partners and as between the heirs of a deceased partner and his executors or administrator his personal property, and devolve and is distributable and applicable as personal estate and as legal assets.

In the subsequent decision in Commissioner of Income-tax, West Bengal, Calcutta v. Juggilal Kamalapet (1967) 1 I.T.J. 142 : 63 I.T.R. 292 : (1967) 1 S.C.J. 177 : (1967) 1 S.C.R. 748 : A.I.R. 1967 S.C. 401 the Supreme Court has observed:

The deed of relinquishment in this ease was in respect of the individual interest of the three Singhania brothers in the assets of the partnership, a firm in favour of the Kamala Town Trust and consequently, did not require registration, even though the assets of the partnership firm included immovable property, and was valid without registration. As a result of this deed, all the assets of the partnership vested in the new partners of the firm.

14. The partition of the partnership assets of the dissolved firm in the present case was between P.W. 1, a partner, and D.W. 1, the representative of a deceased partner, and not between a partner and any third party; Section 22 of the Partnership Act would, therefore, apply. The aforesaid two decisions of the Supreme Court, as well as the opinion of the Full Bench of Andhra Pradesh High Court, referred to above, lay down that in such a case the record evidencing the division of the assets of the firm cannot be treated as relating to immovable properties even if they concerned such properties but must be regarded as personal estate and as legal assets. Therefore, I agree with the learned Counsel for the appellant that Exhibit A-1 is a record showing the 'division of the assets of a dissolved firm and that Section 22 of the Partnership Act applies and that it does not require registration.

15. The appellant had not raised this point in her original memorandum of grounds of second appeal and had therefore filed C.M.P. No. 493 of 1976. The point raised in this additional ground is one of law and can be raised at any time. The petition is, therefore, allowed.

16. The learned Counsel for the respondent submitted that Exhibit A-1 can be construed even as a deed of partition and has to be stamped as such, having regard to Section 6 of the Indian Stamp Act and that since objection had been taken to the admissibility of that document in evidence, it could not be admitted for want of stamp. Section 6 of the Indian Stamp Act reads thus;

Subject to the provisions of the last preceding section, an instrument so framed as to come within two or more of the descriptions in Schedule I, shall, where the duties chargeable thereunder are different, be chargeable only with the highest of such duties;

Provided that nothing in this Act contained shall render chargeable with duty exceeding four rupees fifty-nine paise, a counterpart or duplicate of any instrument chargeable with duty and in respect of which the proper duty has been paid.

The learned Subordinate Judge has, no doubt stated in paragraph 7 of his judgment that exception was taken to the admission of Exhibit A-1 in evidence on the ground that it was a partition-deed or an award and was inadmissible in evidence for want of stamp and registration. The record shows that Exhibit A-1 had, however, been admitted in evidence, and the learned Subordinate Judge, who had admitted it in the evidence subject to the question of its admissibility being considered later, has considered only the question of its inadmissibility in evidence for want of registration. The learned Additional District Judge has erred in thinking that the trial Court had admitted Exhibit A-1 subject to the determination of the question of its admissibility for want of stamp. The Privy Counil has observed in Gopal Das v. Sri Thakurji (1943) 2 M.L.J. 51 : 56 L.W. 593 : A.I.R. 1943 P.C. 83.

The endorsement 'admitted against the plaintiff is in the form generally employed by the trial Judge under Order 13, Rule 4, for documents tendered by the defendant's just as the plaintiff's documents are marked 'admitted against the defendant'. The endorsement means that the document is admitted in evidence as proved. Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial.

The respondent had not insisted on Exhibit A-1 being admitted in evidence subject to the question of its admissibility for want of stamp and registration being considered subsequently by the trial Court and she cannot, therefore complain about its admissibility for want of stamp even if it requires any stamp. The Supreme Court has observed in Kashinathsa v. Narasingasa referred to above, that "the documents were admitted in evidence by the trial Court and no question of admissibillity of those documents can be raised at a later stage of the suit, or in appeal'. Section 36 of the Stamp Act lays down:

Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.

Section 61 provides for revision by the appellate Court of certain decisions of Court regarding the sufficiency of stamps, of its own motion or on the application of the Collector. Therefore, I agree with the learned Counsel for the appellant that it is not open to the respondent to contend at this stage that Exhibit A-1 is inadmissible in evidence for want of stamp, even if it required any stamp, as it has already been admitted in evidence by the trial Court.

I7. There is evidence to show that O.S. No. 59 of 1961 had been filed by D.W. 1 aganist P.W. 1 and another for the inclusion of his name as a sharer in "N.M.T. Transports' on the basis of an agreement dated, 1st December, 1957. Exhibit A-1 had not been produced in that suit and P.W. 1 had denied the existence of any agreement, dated 1st December, 1957 between them. Now P.W. 1 has admitted that there is no other agreement, dated 1st December, 1957 besides Exhibit A-1. The learned Additional District Judge had, therefore, inferred that the agreement, dated 1st December, 195 7 involved in O.S. No. 59 of I96I must be only Exhibit A-1, and he has observed in paragraph 6 of his judgment that it is no more open to P.W. 1 to rest any claim on the foot of the transaction evidenced by Exhibit A-1. The respondent had not raised any plea of res judicata or estoppel as regards Exhibit A-1 in her written statement. Therefore, the learned Counsel for the appellant relied upon the decision of the Privy Council in Pit Sidik Mahomad Shah v. Musammat Saran 121 I.C. 204 : (1930) 58 M.L.J. (P.C.) A.I.R. 1930 P.C. 57 (1) and that of the Supreme Court in Bhagat Singh v. Jagwant Singh (1962) 1 S.C.J. 162 : A.I.R. 1966 S.C. 1861 in which the said decision of the Privy Council is referred to, and submitted that the learned Additional District Judge ought not to have gone into that question. The Privy Council has observed in that decision that "no amount of evidence could be looked into upon a plea which was never put forward" and following it, the Supreme Court has observed that "where a claim has never been made in the defence, no amount of evidence can be looked into upon a plea which was never put forward". Therefore, I agree with the learned Counsel for the appellant and hold that it was not open to the learned Additional District Judge to go into the question and hold that it is no more open to P.W. 1 to rest any claim on Exhibit A-1.

18. For the reasons mentioned above, I agree with the learned Subordinate Judge that Exhibit A-1 does not require registration, though for another reason, and that the appellant has title to the suit property and was in possession. There of on the date of the suit and is entitled to the declaration and injunction The second appeal, is therefore, allowed with costs throughout. No leave.