JUDGMENT Collister, J.
1. This is a defendants' appeal which arises out of a suit to recover possession of five plots, Nos. 201, 285, 365, 289 and 346/2, in village Ghhapra Mansur in the District of Gorakhpur. The case for the plaintiffs, as set out in the plaint, may be briefly stated as follows:
On 17th October 1911, a co-sharer named Kamta, who owned 19 pies in khata khewat No. 2, executed a usufructuary mortgage in respect of the plots in suit and other plots in favour of defendants 1 and 2 and the father of defendant 3. On 25th April 1928, Lalsa, the son of Kamta who by that time had died, sold the five plots in suit along with other plots to plaintiffs. 1 and 2 and the father of the remaining plaintiff's, leaving with the vendees the money required to pay off the mortgage-deed of 17th October 1911. The plaintiffs duly deposited this money in Court in favour of the defendants in accordance with the provisions of Section 83, T.P. Act; but the defendants refused to deliver possession of the plots in suit. The defendants pleaded inter alia that on 23rd December 1921, they had purchased a five pie share in khata khewat No. 2 from Kamta and his son, Lalsa, and that they thus acquired proprietary rights in a portion of the plots in suit which admittedly appertain to khata khewat No. 2. Lalsa was, therefore, not competent to transfer the plots in suit to the plaintiffs on 25th April 1928. Finally it was contended that the plaintiffs had themselves admitted the exclusive rights of the defendants in respect of plots 201, 285 and 365 and the suit is, therefore, barred by estoppel. The remedy of the plaintiffs was to sue for partition in the revenue Court if the defendants had entered into possession of an area in excess of their share in khata khewat No. 2.
2. The trial Court found that the defendants, by virtue of the sale deed of 23rd December 1921, had acquired a proprietary interest in the plots in suit and that Lalsa was not competent to transfer the plots in suit to the plaintiffs under the sale deed of 25th April 1928, but that by reason of an agreement, which was entered into by the parties on 15th January 1929, and which is evidenced by a document referred to as a phatbandhi, the plaintiffs were entitled to possession over plots 289 and 346/2 only and that the defendants who had all along been in possession of the plots in suit were entitled to retain possession of the remaining plots. The suit was decreed for possession of these two plots only and for mesne profits at Rs. 15 per annum. Both parties appealed to the lower appellate Court, which dismissed the appeal of the defendants and allowed the appeal of the plaintiffs. The suit was accordingly decreed for possession of all the plots in suit together with mesne profits at Rs. 40 per annum. The learned Judge of the lower appellate Court finds that under their sale-deed of 23rd December 1921 the defendants acquired no title in these specific plots. He also finds that the phatbandhi of 15th January 1929 was not acted upon and furthermore that it was inadmissible in evidence by reason of non-registration. Learned Counsel for the defendants-appellants challenges these findings of the lower appellate Court.
3. It is an admitted fact that the defendants entered into possession of the plots in suit under the usufructuary mortgage of 17th October 1911. On 25th April 1928 these specific plots were sold to the plaintiffs and money was left with them for redemption of the mortgage of 17th October 1911. That mortgage was duly redeemed and thus by reason of their sale-deed of 25th April 1928 and their redemption of the mortgage of 17th October 1911, the plaintiffs became entitled to the possession which had hitherto been with the defendants. The plaintiffs' claim to possession cannot be defeated by the fact that on 23rd December 1921 the defendants purchased a fractional five pies share in khata khewat No. 2. Moreover in that sale deed no reference whatsoever was made to the usufructuary mortgage of 17th October 1911, and no part of the mortgage money due thereunder was set off against the sale consideration. It is thus clear, as pointed out by the learned Judge of the lower appellate Court, that the sale of this five pies share in 1921 was not regarded by the vendor or the vendees as having any concern with the usufructuary mortgage of 1911. In my opinion the finding of the lower appellate Court is clearly right on this point.
4. The next plea is concerned with the phatbandhi of 15th January 1929. The lower appellate Court finds that no action was taken by either party to give effect to that document and points out that neither party relied upon it in the mutation proceedings which followed an application by the plaintiffs shortly after the execution of the phatbandhi for mutation of their names. The learned Judge also finds that this document required registration and that, being unregistered, it was inadmissible in evidence. Learned Counsel for the defendant-appellant pleads that this document is merely a memorandum of an agreement to enjoy the specific plots separately and he argues that it does not therefore require registration. In this document lists were drawn up purporting to show which plots were allotted to the plaintiffs and which were allotted to the defendants, and it is to be observed that the document was signed, not only by the parties to this litigation, but also by Lalsa, who was still a co-sharer in khata khewat No. 2. It will be seen that each of the parties concerned gave up under this document a right or interest in the plots in suit. Lalsa gave up all claim to any portion of these specific plots : the defendants gave up their claim to plots Nos. 389 and 346; and the plaintiffs gave up their claim to plots Nos. 201, 285 and 365.
5. In Subbarao v. Mahalakshmamma A.I.R. 1930 Mad. 883, a suit was instituted for possession of certain properties on the allegation that the plaintiff and his brother were members of an undivided Hindu family and that on the death of his brother the family property devolved by survivorship on the plaintiff. The defence was, inter alia, that the plaintiff and his brother had separated and that share lists showing division of the properties had been prepared on a certain date. A document was produced which was described as a share list. It was headed "particulars of the immoveable properties which fell to the share of" the plaintiffs' brother. Then followed the survey numbers of the properties, their situation and their approximate area. The question before the Court was whether this was a deed of partition or a mere memorandum of partition. It was held by a Bench of the Madras High Court that the fact of that document and its counterpart both being signed indicated an intention that the two documents should be the evidence of the partition and therefore not being registered as required by Section 17(b), Registration Act, the document in question was inadmissible in evidence. I have examined the phatbandhi. The following is a translation, the areas and the numbers of irrelevant plots being omitted:
Specification of the 5 pies share of Naipal Rai, Deonandan Rai and Bechan Rai, proprietors in mauza Chhapra Mansur. Name of proprietor....
1. Ex-proprietary holding of Lalsa Dube (Certain plots are here enumerated).
2. Plots of khudkasht in respect of which the rights have been relinquished in favour of Naipal Rai, Deonandan Rai and Bechan Rai (i.e., the defendants).
The plots enumerated include Nos. 201, 285 and 365.
3. Mangan Koeri, resident of Ahrauli (two plots are here enumerated).
Abhilakh Koeri, resident of Ahrauli (one plot is here enumerated).
Khudkasht of Naipal Rai and others (one plot is here enumerated).
New fallow land towards the west (one plot is here enumerated).
(Sd.) Naipal Rai, Deonandan Rai and Bechan Rai.
We have accepted the phatbandhi. By the pen of Sukhdeo Rai in autograph, 15th January 1999.
Our shares have become complete in every way.
No share in anything remains un. allotted.
This was written by the pen of Sukhdeo Rai in autograph, 15th January 1929.
(Sd.) Bechan Eai in autograph.
Thumb-impression of Naipal Rai Do. Deonandan Rai
4. Specification of the shares of Paras Ram Dube, Dhanuk Dhari Dube, Hira Dube and others (plaintiffs).
Name of proprietor:
(14 plots are here enumerated, including Nos. 346/2 and 289).
New sale deed.
(Four plots are here enumerated).
Grand total of the shares of Paras Ram Dube and others. 18 8.40 I have accepted the phatbandhi.
(Sd.) Paras Ram Dube in autograph.
I have accepted the phatbandhi.
(Sd.) Hira Dube, in autograph.
I have accepted the phatbandi.
(Sd.) Dhanuk Dhari Dube.
This was written by the pen of Hira Dube, 15th January 1929.
Thumb-impression of Dhanuk Dhari Dube.
I neither have nor shall have anything to do with the above plots of land belonging to Naipal Rai and others and Paras Ram Dube and others, which are in then possession.
This was written by the pen of Hira Dube.
Thumb-impression of Lalsa Dube.
I identify all of Naipal Rai, Paras Ram Dube and others.
6. seems to me that this phatbandi is much more than a mere memorandum. It is a formal document, signed by all the parties, and is in substance and intention document which purports to declare the rights of the parties in the plots in suit. I agree with the lower appellate Court that it required to be registered under Section 17(b), Registration Act, and that, being unregistered, it is inadmissible in evidence. In my opinion the findings of the lower appellate Court are correct. This appeal therefore fails and is dismissed with costs. Permission to file an appeal under the Letters Patent is asked for and is refused.