(1) The plaintiffs (six in number) in the suit are the appellants in the second appeal. The 1st defendant alone is the respondent. The suit is filed for a declaration of the plaintiff's title to the suit property of an extent of ac. 25 - 48 cents in kapatralla village, kurnool district and to recover possession of the same and damages for use and occupation and future profits. The suit was filed on 20 - 2 - 1968 in the district munsif's court dhone and subsequently transferred to the district munsif's court, pattikonda and re - numbered as o. S. No. 4 of 1970 on the file of that court.

(2) According to the plaintiffs the suit property belonged to one pedda kowiutlayya, who was the husband of the 1st plaintiff and the father of plaintiffs 2 to 6. The 1st plaintiff is his second wife. The 2nd pfaintiff is his son by his first wife. Kowlatlayya died in the year 1965 and after his death the plaintiffs became entitled to the suit property.

(3) The case of the plaintiffs is that kowlutlayya purchased the suit property from the 1st defendant under ex. A - 4 dated 7 - 5 - 1948 registered sale deed for a sum of rs. 500/ - and took possession of it and subsequently leased out the land to the 1st defendant under lease deeds, exs. A - 3. A - 2 and a - 1 dated 17 - 3 - 1961, 26 - 3 - 1963 and 5 - 1 - 1965 respectively each for two years. After the death of kowiutlayya the 1st defendant failed to pay the rent of rs. 75/ - stipulated in the lease deeds and refused to deliver possession.

(4) The 2nd defendant in the suit is a cousin of the 1st defendant, who, it appears executed a registered cowl in favour of defendants 2 to 6 for one year for the suit land. There was no contest in the suit by them. It is only the 1st defendant who contested the suit. He denied that he was a tenant of kowiutlayya according to him the sale deed ex. A - 4 executed by him in favour of kowiutlayya was not acted upon. The sum of rs. 500/ - mentioned as consideration in the sale deed was the sum borrowed by the |st defendant from kowiutlayya, kowlutlayya, never came into possession of the suit land. The 1st defendant also pleaded chat kowlutlavya executed an agreement, ex. B - 2 dated 8 - 5 - 1948 (one day after ex. A - 4) and on the basis of it he is entitled tc resist the claim of the plaintiffs as provided under section 53 - a of the transfer of property act. The 1st defendant also claimed that he perfected his title by adverse possession and enjoyment by denying the execution of the lease deeds. Exs a - 1 to a - 3.

(5) It may be noted that exs. A - l to a - 3 were for two years each and there - fore they require registration for their validity. The trial court found that their execution has been satisfactorily proved and therefore they are true. On the question of their admisslbility in evidence for want of registration, the trial court found that they are admissible in evidence for the collateral purpose of showing the nature of possession. The plaintiffs denied that pedda kowlutlayya executed ex b - 2 agreement in favour of the 1st defendant. An objection was also taken for its admissibility on the ground of non - registration. This objection was over - ruled by the trial court on the ground that ex. B - 2 does not by itself create any right in respect of the land and as such it does not require registration. But, however, the trial court came to the conclusion that there is no satisfactory proof regarding the execution of ex. B - 2 by pedda kowlutlayya and therefore held that ex. B - 2 is not true. The trial court also negatived the contention of the 1st defendant that kowlutlayya never came into possession of the suit land as per ex. A - 4. According to the plaintiffs after kowlutlayya obtained possession of the suit land in pursuance of his purchase under ex. A. 4 sale deed, he kept the land fallow before he leased it out to the 1st defendant under exs,a - 1 to a - 3. To come to the conclusion that in pursuance of ex. A - 4 sale deed pedda kowlutlayya came into possession of the suit land, the trial court placed reliance on ex. A - 5 extract of no. 10 (i) account and ex. A - 6 extract of no. 2 account for fasilis 1370 to 1378. The trial court did not place reliance on cist receipt books ext. B - 3 to b - 11i on which reliance was placed by the 1st defendant, on the ground that they are not public documents and they have not been proved by adducing the evidence of the village officers who are said to have issued them.

(6) Another contention raised on behalf of the 1st defendant is that the value of the land covered by ex,a - 4 was far higher than rs. 500/ - the price mentioned therein and the consideration of rs. 500/ - mentioned in the sale deed, ex, a - 4 is only a debt borrowed by the 1st defendant from kowlutlayya and that ex. A - 4 was executed as a collateral security and not that it should be acted upon as a sale deed. The trial court found that out of ac. 25 - 48 cents about ac. 8 - 00 of it is rocky and out of the remaining only ac. 8 - 00 is capable of cultivation and the remaining is a waste land. Both sides adduced documentary and oral evidence regarding the value of the land. On behalf of the plaintiffs reliance was placed on exts. Xi and x2 sale deeds to show that the suit land was not worth more than rs. 500/ - in the year 1948 this found favour with the trial court and after discussing the evidence adduced by both the parties in that behalf the trial court came to the conclusion that exa - 4 was executed by the 1st defendant in favour of pedda kowlutlayya intending it to be a sale deed and that it was acted upon.

(7) It may also be noted that when the plaintiff valued the suit property for the purpose of court - fee and jurisdiction at rs. 3,448/ - and paid court - fee, the 1st defendant contended in his written statement that the plaintiffs have grossly under - valued the property and that the present value of the same is more than rs. 10,0000/ - and as such the suit is beyond the pecuniary jurisdiction of the court and issue was framed as issue no. 5 as to whether the court has no pecuniary jurisdiction to try the suit. In discussing that issue, the trial court observed that there is no satisfactory evidence adduced by the defendants to show that the suit lands are really worth rs. 10,000/ - on the date of the suit and accordingly accepted the value given in the plaint by the plaintiffs.

(8) On the question of adverse possession, the trial court negatived the contention of the 1st defendant on the basis of exs. A - l1to a - 3.

(9) In the end, on the above findings, the trial court decreed the suit declaring the plaintiffs' title and awarding rs. 225/ - as damages for use and occupation for three years.

(10) In the appeal filed by the 1st defendant, the learned subordinate judge by placing reliance on a decision of this court in chinta venkata jagannatha rao vs. Dolanaran naidu (i) (a. I. R. 1967 a. P. 331) came to the conclusion that exs. A - 1 to a - 3 are not admissible in evidence even to show the nature of possession. As regards the truth of exs. A - 1 to a - 3. The learned subordinate judge did not go into that question by observing that as they have become in admissible in evidence the question as to whether their execution is true or not need not be gone into. The learned subordinate judge also found that there is satisfactory proof regarding the execution of ex. B - 2 by pedda kowlutlayya and the same is true and it is binding on the plaintiffs.

(11) The learned subordinate judge has also come to the conclusion that no physical possession was taken by pedda kowlutlayya and the amount of rs. 500/ - mentloned in ex. A - 4 is only a debt and that pedda kowlutayya was only being given the produce by the 1st defendant every year towards the discharge of the debt of rs 500/ - and that it would be clear from ex. B - 2 that: ex. A - 4 was not acted upon and no possession was delivered at all to padd kowlutlayya and that it is taken only as a. Collateral security as pleaded by the 1st defendant. The learned subordinate judge also placed reliance on exs. B - 3 to b - 21 for coming to the conclusion that the 1st defendant alone was in possession. On these conclusions, the learned subordinate judge found that the suit land never belonged to pedda kowlutlayya and he did not diepossessed of the same for the plaintiffs to claim it. Accordingly the learned subordinate judge allowed the appeal and dismissed the suit with costs throughout. It is against this the plaintiffs have preferred this second appeal.

(12) Sri n. Bapi raju, learned counsel who argued for the plaintiffs - appellants has made the following submissions :

(13) The learned subordinate judge erred in thinking that ext. A - 1 to a - 3 are not admissible in evidence even to show the nature of possession.

(14) The learned subordinate judge has committed errors of law in finding the truth of ex. B - 2 agreement negativing the finding given by the trial court to the contrary by misreading the evidence of the 1st defendant given as d. W. 2 and rejecting the notices. Exs. X - 4 to x - 6. For this the learned judge has placed reliance on a decision of the madras high court in bapayya vs. Venkataratnam (2) a. I. R. 1953 mad. 884

(15) The learned counsel has further argued that ex,b - 2. Even if true, is an independent transaction without having anything to do with ex. A - 4 sale deed as admitted by the 1st defendant in his evidence and as there is no consideration for it in any view cf the matter it is not enforceable in law.

(16) There appears to be some force in the points raised by sri bapi raju in his arguments. The view taken by the learned subordinate judge that exs. A - 1 to a - 3 lease deeds are not admissible in evidence even to show the nature of possession for want of registration appears to be wrong. If that is so, it is necessary to find out whether the lease deeds true or not. But the learned subordinate judge did not go into that question on the ground that question need not be gone info as the documents are not admissible in evidence. In the view i am taking on the question of admissiblity. The matter has to go back to the first appellate court for giving a finding on the question of the truth or otherwise of exs. A - 1 to a - 3 also and for disposal afresh after giving that finding.

(17) Sri c. Padmanabha reddy, learned counsel for the 1st defendant - respondent, has argued that even assuming that ex. A - 4 is an out and 'out'sale. Ex a - 4 read with ex. B - 2 agreement of sale becomes a sale with an agreement of re - purchase and as nineteen years period mentioned in ex. B - 2 has expired the ist defendant is entitled to have reconveyance of the land and till then being in possession he can defend it as provided under section 53 - a of the transfer of property act. This, sri bapi raju, has countered by arguing that the ist defendant was not given possession under ex. B - 2 agreement and even if it is true section 53 - a of the transfer of property act has no application. All these contentions the parties are free to make before the first appellate court after remand, which court will consider the same on merits and give findings.

(18) It is provided under section 49 of the indian registration act, 1908 that no document required by section 17 or by any provision of the transfer of property act to be registered shall affect any immovable property comprised therein or be received as evidence of any transaction affecting such property unless it is registered. As per the provision made in the proviso to that section such a document may be received as evidence of any collateral transaction not required to be effected by registered instrument. It has consistently been held bycourts of law that an unregistered document of transfer which is required to be registered and not registered is admissible in evidence to prove the date of entering into and the fact of possession of the transferee and to show the character of his possession. Though an unregistered document required to be registered under law is not admissible in evidence to claim any right under it, it would be admlsseb'e in evidence for a colleteral purpose i. E. For a purpose other than that for which the document was created. It has always been held that a vendee under an unregistered sale deed, who comes into possession under it, though the document is inadmissible in evidence to prove title or any rights under it. It will be admissible in evidence to show the character of possession of the vendee, viz. , whether it is in his own right or whether it is with permission like that of a lessee or licensee, and if he continues in such possession for over the statutory period he acquires title to the property not an account of the unregistered sale deed, but on account of the fact of his having been in possession for over the statutory period in his own right adversely to the real owner. Similarly if a lessee comes into* possession of immovable property under an unregistered lease deed which requires to be registered under law, certainly it would be admissible in evidence to show the character of his possession, viz. , that his possession is that of a lessee and therefore permissive in nature, since a lessor, who parts with physical possession to a lessee, under law is always considered to be in constructive possession through the lessee. Therefore, so long as the possession of the lessee is permissive he cannot prescribe any title hostileto his lessor. Therefore, though exs, a - l to a - 3 are not admissible in evidence to prove any right under them, to prove the character of possession of the 1st defendant who executed the same, if they ar true, are admissible in evidence. Thoug the plaintiffs cannot recover possessionof the suit property on the basis of exs a - l to a - 3 leases still they can recove possession of it on the basis of their title and not losing it - o the 1st defendant by showing that he did not acquire title by adverse possession and enjoyment, his possession being pel missive in nature and not in his own right to put it in other words, the plaintiffs can use exs. A - 1 to a - 3 not to estop the 1st defendant from denying their title but to show that the possession which hi; had was permissive in nature.

(19) In the dtclsion rama vliya bhushan singh vs. R. Atl ram (3) (1969) (s. C v. R. 34) the supreme court said that when the agreement was unregistered it could not create in favour of the defendant the right of a tenant for a period of fifteen years and the agreement was on that account inadmissible in evidence to support that claim, but it is admissible in evidence to support his plea that, his possession was that of a tenant.

(20) In the decision padma vithcba vs. Mohd. Multanli (4) air 1963 s. C. 70 the supreme court has said that when a person gets into possession of properties as mortgagee, he cannot by any unilateral act or declaration of his prescribe for a title by adverse possession against the mortgagor, because in law his possession is that of the mortgagor. But if the mortgagor and mortgagee subsequently enter into a transaction under which the mortgagee is to hold the properties thereafter not a] a mortgagee but as owner that would be sufficient: to start adverse possession against the mortgagor if the transaction is for any reason inoperative under law. Thus if the owner of the mortgaged property is a minor at the time of entering into the transaction of sale with the mortgagee, the possession of the mortgagee which is lawful at its inception cannot become adverse to the minor who is in law incapable of giving consent to the arrangement entered into with the mortgagee.

(21) Sri padmanabha reddy has, lowever, placed reliance on the decisions: mst. Kirpal kuar vs. Bachan singh (5) ; (air 1958 s. C. 199) chinta venkata agannatha rao vs. Dola napannaidu (1) (air. 1967 a. P. 331) and the judgment of this court in c. R. P. No. 763 of 1970 dated 18 - 9 - 1970 in support of his contention that exs. A - 1 to a - 3 are not admissible in evidence even to show the character of possession.

(22) In the decision mst. Kirpal kuar vs. Bachan singh the facts are some what different. The party was already in possession by tne time the unregistered document in question came into existence. The supreme court said that the possession of the party which was adverse till that time cannot become permissive subsequent there to by reason of the unregistered document. If the unregistered document can be said to be admissible to show the nature of the subsequent possession, it would amount to treating the document as operating to destroy the nature of the previous possession and to convert; what had started as adverse possession into permissive possession and therefore to give affect to the agreement contained in it which admittedly cannot be done for want of registration thus, the facts there are different which have no application with regard to the admissibllity of exs. A - 1 to a - - 3 to show the nature of possession when the 1st defendant entered into for the first time under the documents.

(23) So also in the decision chinta venkata jagannadha rao vs. Dola naran naidu (1) the facts are different. There also the document in question was a lease deed which required registration, the lease period being for more than one year. There, the plaintiff sought to rely on the fact of the lease to get the relief prayed for in the plaint by showing the nature of possession of the defendant. Here also the document itself was sought to be relied upon to prove the rights of the plaintiffs to recover possession of the property in question. Under these circumstances, it is rightly said that for that purpose the unregistered document is not admissible in evidence.

(24) In c. R. P. No. 763 of 19/0 also the facts are different. There the defendant wanted to prove by the unregistered lease deed his possession as a lessee which means by the document he wants to prove the transaction of lease itself. Under those circumstances, it was held that the document was not sought to be proved for a colleteral purpose.

(25) In the three decisions on which reliance was placed by sri padmanabha reddy the purpose was not collateral and the documents were sought to be proved to show the right claimed under the documents themselves and not merely to show the character of possession,

(26) Therefore, i hold that exs. A. 1 to a. 3 are admissible in evidence to show the character of possession of the 1st defendant, viz. That his possession was that of lessee and therefore not adverse to that of pedda kowlutlayya. Therefore, whether they are true or not has to be found. As already mentioned above, it is necessary to send the case back to the first appellate court for giving a finding on the truth or otherwise of the documents, exs. A. 1 to a. 3 on the basis of the evidence already on record. As in any way the case is going back to the first appellate court, i do not propose to express any views on any of the other points in controversy between the parties as mentioned above. All those questions are left open and the parties are free to make their submissions on those questions before the first appellate court after remand and the court is free to go into all those questions afresh and give findings on all the questions on the basis of the evidence already on record.

(27) Accordingly the second appeal is allowed and the judgment and decree of the first appellate court are set aside and the case is remitted back to the first appellate court for disposal afresh in accordance with law in the light of the observations made above. The parties are directed to bear their respective costs in this second appeal. The office is directed to refund the court - fee paid on the memorandum of second appeal.