JUDGMENT : Mahapatra, J. - Defendants 2 and 3, who were unsuccessful in both the courts below, have brought this second appeal against the judgment and decree dated 18th December, 1952 of Sri R.C. Misra, District Judge of Sambalpur-Sundergarh, confirming a decision of the Subordinate Judge of Sambalpur; arising out of a suit brought by the Plaintiff Respondent No. 1 for declaration of title and for recovery of possession in respect of 38.53 acres of land appertaining to holding No. 118 described fully in schedule attached to the plaint. Defendant No. 1 is the recorded tenant in respect of the holding. Defendants 2 and 3, that is, the present Appellants are the son and grand son respectively of Defendant No. 1. Defendants 4 to 7 are the agnates of Defendant No. 1. Defendant No. 19 is the landlord and Defendant No. 18 is the Plaintiff's divided brother who died during the pendency of the appeal. 2. The Plaintiff and his brother (Defendant No. 18) obtained a decree (Ext. 12) for a sum of Rs. 1364/- against Defendant No. 1, the recorded tenant, in the court of the Subordinate Judge of Sambalpur. The decree was eventually put in execution for realisation of Rs. 1405/-. With the consent of the agnates (Defendants 4 to 17), the first Defendant, to discharge the debt, surrendered the holding in favour of the landlord, the Pattidar Gountia, on 20th April 1932, as per unregistered deed of surrender (Ext. 6). On that very day, Defendant No. 19, the landlord executed an unregistered lease-deed (Ext. 7, in favour of the Plaintiff and his brother after obtaining a Nazarana of Rs. 351/-. A third document also was executed on that very day, that is, 20th April, 1932, that is a Kararnama (Ext. 11) in between the Plaintiff and his brother and Defendant No. 1 that if the Plaintiff and his brother are dispossessed in respect of the disputed holding, the Defendant No. 1. would indemnify them to the extent of Rs. 1756/-, that is Rs. 1405/- being the decretal amount and the cost of the decree plus Nazarana of Rs. 351/- paid by the Plaintiff and his brother for obtaining the lease deed from the landlord. In 1943, the Plaintiff applied for mutation in the Revenue Court, the mutation application being Ex. 10 dated 1st March, 1943. 1756/-, that is Rs. 1405/- being the decretal amount and the cost of the decree plus Nazarana of Rs. 351/- paid by the Plaintiff and his brother for obtaining the lease deed from the landlord. In 1943, the Plaintiff applied for mutation in the Revenue Court, the mutation application being Ex. 10 dated 1st March, 1943. Defendant No. 1, however, contested the mutation proceedings on the ground that he was to receive a sum of Rs. 650/- more from the Plaintiff. On the objection of Defendant No. 1, mutation proceedings terminated against the Plaintiff. The further part of the Plaintiff's case is that in a partition between the Plaintiff and his brother Defendant No. 18, the suit property fail to the exclusive share of the Plaintiff, the partition decree being Ex. 18 in Title suit No. 48/39; the Plaintiff and his brother were in joint possession of the land in dispute till the date of the partition decree and thereafter the Plaintiff was all along in possession of the land, partly in Khas and partly by letting out to tenants; but on 23rd October, 1944, Defendant No. 1, forcibly dispossessed him for which the Plaintiff had to file a suit u/s 9 of the Specific Relief Act (T.S. No. 48/44) which was ultimately dismissed on the ground that dispossession had taken place more than six months before the institution of the suit. So the present suit has been brought on 29-3-1946. 3. Defendant No. 1s defence was that indeed he had executed Ex. 6, the deed of surrender, but it was under undue influence and false representation that a sum of Rs. 700/- was to be paid to him. A further plea also was taken that in the family partition, the property fell exclusively to the share of Defendant No. 2 who was in possession of the property all along; and none of these aforesaid three transactions was given effect to; and the lease deed was a collusive transaction. The additional defence taken up by Defendant No. 2 is to the effect that he was a major at the time when the deed of surrender was executed and that it was an invalid surrender. 4. The learned Subordinate Judge negatived the defence version that Defendant No. 2 was a major at the time of surrender and found that the lease and the surrender deeds had been given effect to. 4. The learned Subordinate Judge negatived the defence version that Defendant No. 2 was a major at the time of surrender and found that the lease and the surrender deeds had been given effect to. He also disbelieved the story of alleged partition set up in defence. He, however, found that the Plaintiff had perfected his little by adverse possession. 5. The lower appellate court, however, vacated the finding of the trial court on the question of adverse possession on the ground that the judgment in the suit u/s 9 of the Specific Relief Act is a res judicata and the Plaintiff therefore cannot be deemed to have perfected his title on the basis of 12 year's continuous possession. He, however, decreed the Plaintiff's suit finding that the surrender was valid and binding against Defendants 2 and 3 and further that the Plaintiff had been able to establish his title to the property on the 'basis of the lease granted by the landlord, Defendant No. 19. It is to be mentioned here that the landlord admitted in his written statement that he has leased out the land in favour of the Plaintiff and his brother and accepted the possession of the Plaintiff as the possession of his tenant. 6. The partition decree as between the Plaintiff and his brother (Defendant No. 18) is a conclusive proof of the fact that the property in dispute fell exclusively to the share of the Plaintiff and this position is not controverted. We may note that the abatement of the appeal against Defendant No. 18, who has no interest in the property after the partition decree, does not affect the appeal. 7. Mr. M.S. Rao, appearing on behalf of the Appellants has taken up two grounds of attack. The first point argued by Mr. Rao is that the Plaintiff in a suit of this nature must prove his title before he is entitled to obtain any relief in the suit. The lease deed (Ext. 7) being unregistered does not convey any title in favour of the Plaintiff and if this is thrown out as inadmissible, no other evidence is available to prove the transaction of lease as between the landlord and the tenant, that is, the Plaintiff. The lease deed (Ext. 7) being unregistered does not convey any title in favour of the Plaintiff and if this is thrown out as inadmissible, no other evidence is available to prove the transaction of lease as between the landlord and the tenant, that is, the Plaintiff. There is no doubt over the position that the lease deed being unregistered, cannot confer any lease-hold right in favour of the lessee; but the manifest position being that the lease was for agricultural purpose, under the provisions of Section 117 of the Transfer of Property Act, a lease would be created orally and by delivery of possession. In order to confer any lease-hold right, a registered document is lot essential. The lease-deed (Ex. 7) is not admissible for the purpose of creating tenancy right in favour of the Plaintiff; but under the provisions of Section 49 of the Indian Registration Act, it is clearly admissible for collateral purposes, that is to show the nature and character of possession, that the possession of the Plaintiff was not by force or fraud and also for the purpose of showing the date of possession. The Courts below have found the Plaintiff's possession ever since the year; 1932, and since the date of the lease deed. The findings remain on assailable before us in second appeal. Moreover, Defendant No. 19, the landlord, had acknowledged in his written statement that in fact the Plaintiff was in possession of the suit property as a lessee since 1932. When the landlord acknowledges the Plaintiff as his tenant and acknowledges the Plaintiff to be in possession of the property as a tenant and the Plaintiff proves his possession on the basis of the lease deed, it is sufficiently clear, the Plaintiff has been able to make out a titles to maintain the suit for ejectment. We may observe, simply because a document was executed between the parties creating a lease-hold right but found inadmissible, Plaintiff cannot be relegated to the worse position that the lease deed has got to be ignored for the purpose of creating the tenancy right, but nevertheless the Plaintiff is entitled to prove his tenancy right otherwise than on the basis of the lease deed, and in our opinion, he has been able to prove his lease-hold right by delivery of possession and by the landlord accepting him as a tenant over since 1932. The point therefore, taken by Mr. Rao must fail. 8. But the second point taken by Mr. Rao appears to be of substance and it is to the effect that the three transactions, the surrender by Defendant No. 1, in favour of the landlord (Defendant No. 19), the lease-deed executed by the landlord in favour of the Plaintiff and the existence on the same day, that is, 20th April, 1932. Mr. Rao contends that all these three transactions constitute only parts of the same transaction of sale as between the Plaintiff and Defendant No. 1 and the sale being for a value more than Rs. 100/- no title can be created in favour of the Plaintiff without a registered document of sale. We have gone through that three documents & the unregistered deed of Kararnama (Ex. 11). On the admitted facts and on a perusal of the plaint itself, we feel convinced to observe that all the three transactions constitute only one transaction between the Plaintiff and Defendant No. 1. The fact remains that all the three transactions came into existence for the purpose of wiping out the decretal dues of the Plaintiff as against Defendant No. 1, that is the consideration for the real transaction on that day. The landlord had to be a party to the transaction and for that he had to be paid a sum of Rs. 35/- as Nazarana; his willingness or consent had to be purchased for the amount. The third document Kararnama makes it absolutely clear that for some reason or other if the Plaintiff is dispossessed, the Defendant No. 1, is bound to compensate him by payment of the entire decretal amount with costs and also the Nazarana which had been paid by the Plaintiff to the landlord to purchase his consent. Had it been a bonafide and genuine case of pure surrender, the landlord was perfectly entitled to lease out to anyone else; but he leased it cut in favour of the Plaintiff and the main purpose for bringing out the transaction on that day, that is to say to wipe out the decretal amount, was effectively carried out. Had it been a bonafide and genuine case of pure surrender, the landlord was perfectly entitled to lease out to anyone else; but he leased it cut in favour of the Plaintiff and the main purpose for bringing out the transaction on that day, that is to say to wipe out the decretal amount, was effectively carried out. The three transactions came into existence on the same day and the dominating and the only purpose being to wipe out the debt of Defendant No. 1 and these facts weigh with us very much to come to the irresistible conclusion that all the three documents came into existence piecemeal only to serve as a device for avoiding the provisions of Section 46 of the C.P. Tenancy Act, according to which Sub-Registrar shall not admit such a deed of sale for registration. In our opinion, all the three constitute one transaction and that is a transaction of sale as between Plaintiff and Defendant No. 1. Indeed the consent of the (sic) has been taken and therefore the agnates are not entitled u/s 7 of the C.P. Tenancy Act to impeach the transaction. But nevertheless, the position stands that this is a case of transfer for valuable consideration of the rights of Defendant No. 1 in favour of the Plaintiff, as such it constitutes a sale and if such a transaction is to be evidenced, it must be by a registered document. In the absence of a registered document evidencing the sale, the sale has no effect in law and does net confer any title in favour of the Plaintiff. 9. We will quote here some observations made in similar cases arising before the Judicial Commissioner Court of Nagpur. The direct decision is reported in Laxman v. Bulobai 128 I.C. 414. The short judgment of the Additional Judicial Commissioner, Mr. Macnair, is to the effect that a transaction which to all outward appearances is a surrender of a tenancy may in fact be a transfer. Here a Hindu widow who had inherited occupancy and absolute occupancy fields from her husband surrendered her tenancy rights to the landlord with a request that the lands might be given to a third person and the landlord leased the lands on the same day to the widow's nominee. It was held that the transaction was really a transfer and was not binding on the reversioners. It was held that the transaction was really a transfer and was not binding on the reversioners. In the instant case, on almost the same facts we are inclined to accept the position that all the three transactions constitute a sale and there being no registered document, the sale is not operative to create title in favour of the Plaintiff. The other decision that we should like to refer in this connection is the case reported in Bhagawat v. Anandamo AIR 1925 Nag. 302, where the Judicial Commissioner and the Additional Judicial Commissioner observed that if a covenant to relinquish the Sir lands is part of the transaction of sale or the mortgage the agreement to surrender will be void and unenforceable. Here there was an interval of nine months between the date of the transactions; but it was held that the two constitute one inspite of the ingenious devices as the two transactions purported to be a case of transfer. It was decided to be void. 10. One more question arises for consideration; whether the Plaintiff has perfected his title by adverse possession. The trial Court gave a finding in favour of the Plaintiff, but the lower appellate court has reversed it. One important feature which has got to be seen in this connection is that the Plaintiff had filed a suit u/s 9 of the Specific Relief Act against Defendants 1 to 3. The suit on contest was dismissed on the finding of limitation and the finding is read to the effect that the Plaintiff was dispossessed sometime after 2nd July, 1943. It is to be noted that the suit u/s 9, of the Specific Relief Act, was filed on 3rd November, 1944. As it was dismissed as barred by limitation, it must be held that the Plaintiff was dispossessed more than six months prior to 3rd November, 1944, that is, before 3rd May, 944: But the finding of the Munsif was to the effect that the Plaintiff was dispossessed sometime after 2nd July, 1943. The learned Munsif found that the possession of the Plaintiff started from 20th April, 1932. The learned Munsif found that the possession of the Plaintiff started from 20th April, 1932. The judgment of the trial court in appreciating the evidence of the witnesses examined on behalf of the Plaintiff was vitiated in law as, according to him, the judgment and decree in the previous suit No. 48 of 1944 u/s 9 of the Specific Relief Act, was not res judicata. But the lower appellate court relying upon two decisions of the Calcutta High Court reported in Hridayanath Ray Vs. Prabodhchandra Khan, and Raj Gopal Bhattacharji and Another Vs. Sarat Kumari Debi, rightly concluded that the finding in the suit u/s 9 of the Specific Relief Act is res judicata so far as the pertinent point of dispossession of the Plaintiff is concerned as the matter was directly and substantially in issue in the suit as between the parties. When the finding of the Munsif in the previous suit is res judicata on the point of dispossession, it has got to be held that the Plaintiff has failed to prove continuous possession for 12 years in order to mature his title on the basis of adverse possession. 11. In conclusion, the Plaintiff having failed to prove title to the property in suit, he is bound to be non-suited. The appeal is, therefore, allowed, the judgment and the decrees of the courts below are set aside and the Plaintiff's suit is dismissed with costs throughout. Das, J. 12. I agree. 13. Appeal allowed. Final Result : Allowed