JUDGMENT : Das, J. - This appeal by Defendants 1 and 2 is directed against the judgment and decree of the learned District Judge of Sambalpur decreeing the Plaintiffs suit. The appeal arises out of a suit commenced by the Plaintiffs for declaration of title and recovery of possession. Plaintiffs proforma Defendants 4 and 5, and the deceased father of proforma Defendant-6 were brothers. Proforma Defendant-3 is the Lumbordar-Gountia of the mouza where the disputed lands lie. The relationship between Defendants 1 and 2 would appear clearly; from the following genealogical table: Ratana Chinta Sudarshan (D-2) Prahlad -w- Kainful Khama --- Chhala -w- Rambha Bihari Dhubani (daughter) (D-1) Plaintiffs' whole case was that the raiyati land in suit measuring 4-66 acres in Mouza Banda originally belonged to Ratna and Prahallad. After their death, Prahallad's son Khama and the son and grand-sons of Ratna mortgaged the suit-lands to the Plaintiff's father Padman Das, by a usufructuary mortgage dated February 10, 1929, for Rs. 669-1-9 and put the mortgagee in possession thereof. Subsequently, the family was in need of more money for their household expenses and accordingly Khama, son of Prahallad, and the latter's widow Kainfula, Challa, son of Ratna, his son Bihari and Chintamani, the second son of Ratna and Chintamani's son Sudarshan sold the land to the mortgagee under eight separate sale-deeds (Ext 1 series) dated January 13, 1932, each for Rs. 99/- in all on receipt of a sum of Rs. 122/- over and above the mortgage-money due. At that time, the second Defendant, Sudarshan was a minor. Hence the document was executed on his behalf by one Bisi Padhan who was his mother's father. Subsequently, at the time of the family partition the disputed lands were allotted to the Plaintiffs' share and the Lambardar Gauntia, proforma Defendant-3, has been receiving rent from them. Thus, by remaining in possession of the disputed lands since January, 1932 by virtue of the sale deeds the Plaintiffs have prescribed their title to the lands. In 1951, the contesting Defendants unlawfully removed the crop from a portion of the suit-land which resulted in a criminal case in which the Defendants were convicted but were eventually acquitted on appeal. During the pendency of the criminal case they trespassed upon the rest of the suit-lands and removed the crops from the same. Hence, the Plaintiffs claimed a damage of Rs. During the pendency of the criminal case they trespassed upon the rest of the suit-lands and removed the crops from the same. Hence, the Plaintiffs claimed a damage of Rs. 150/- towards' the crops of the year 1951- 952. 2. The proforma Defendants 3 to 6 did not appear at all. The claim was only resisted by the principal Defendants, that is, Defendants 1 and 2, the Appellants before this Court. According to them, they had no personal knowledge of the mortgage, passing of consideration and the legal necessity thereunder. They characterised the sale-deeds as spurious, illegal and invalid. Further, it was averred that Bisi Padhan had no right to represent the second Defendant in the sale, and accordingly the transfer made by him would not legally bind the second Defendant, nor the 1st Defendant who also was then a minor. They further contended that the usufructuary mortgage having been discharged by efflux of time under the provisions of the Orissa Money Lenders Act (Section 17) and the Plaintiffs, having sue motu left possession of the suit-lands, in a Punchayati subsequently convened by the Defendants, were not in continuous possession of the suit-lands. Lastly, they averred that the claim for damages was preposterous inasmuch as the suit-lands are incapable of yielding more than 2? Purugas of paddy. 3. The learned Munsif when heard the suit at the first instance held that the sale-deeds were not genuine and that the stamp-papers of the sale-deeds given to the Plaintiffs for some other purpose had been utilised to fabricate Ext. 1. series which had never been acted upon. He also negatived the contention that Bisi Padhan was the defect guardian of Defendant-2 and that the suit-land was altered to the Plaintiffs' share at the family partition. According to him the mortgage had been satisfied by efflux of time. Although he fixed the damages at Rs. 125/- he could not grant that relief to the Plaintiffs on account of his finding that Ext. 1. series were not genuine documents. 4. All the above findings were challenged in appeal by the Plaintiffs. The learned District Judge came to the conclusion that if the sale is one u/s 54 of the Transfer of Property Act it is invalid in the absence of registration, although each sale-deed is for less than Rs. 100/-. 1. series were not genuine documents. 4. All the above findings were challenged in appeal by the Plaintiffs. The learned District Judge came to the conclusion that if the sale is one u/s 54 of the Transfer of Property Act it is invalid in the absence of registration, although each sale-deed is for less than Rs. 100/-. After having considered the effect of Sub-section (5) of Section 46 of the Central Provinces Tenancy Act, the learned Judge examined the alternative case that even if the documents had been registered that could not have any title unless they have perfected it by prescription. Ultimately he came to the conclusion relying on the evidence of P. Ws. 1. to 3 that Ext. 1 series were genuine documents and by the sale-deeds the executants desired to put an end to the possession of the Plaintiffs' father as a mortgagee and accepted him as a vendee which intention was clear from the recitals in the sale-deeds, He further found that the sale-deeds may be invalid, but under the invalid sales the Plaintiffs having remained in possession for over the statutory period, they have perfected their title and accordingly he decreed the Plaintiffs' suit, and allowed damages as fixed by the trial Judge. The 1st and the 2nd Defendants as stated earlier have preferred this appeal against this decision of the learned District Judge. 5. The sale contention raised in this appeal by Mr. Sen was that since there was no delivery of possession under the sale-deeds, the Plaintiffs must show that there has been some change in the character of possession before they can succeed in this action. Before dealing with this contention, I would like to state that the mortgage-deed was not produced at the trial. But the admitted facts are as is apparent from the recitals in the sale-deeds, that a usufructuary mortgage-bond was executed by the ancestors of the present Appellants in favour of the Plaintiffs' father on February 10, 1929, and the eight sale-deeds were executed in favour of the Plaintiffs father on January 13, 1932. Evidence was led that the Defendants came into possession of the land-in-suit from about 1935. In paragraph 6 of their written statement they averred that under the provisions of the Orissa Money Lenders Act the mortgage was automatically discharged by efflux of time which would bring us to the year 1944. Evidence was led that the Defendants came into possession of the land-in-suit from about 1935. In paragraph 6 of their written statement they averred that under the provisions of the Orissa Money Lenders Act the mortgage was automatically discharged by efflux of time which would bring us to the year 1944. In other words according to the averments in the written statement the Plaintiffs' father was in possession of the disputed law until the year 1944. Hence, it is preposterous to contend that the Defendants came into possession of the lands in or about the year 1935 while the usufructuary mortgage was still subsisting. The learned Judge has devoted a constables portion of his judgment to the tangible or intangible character of the property which I think is quite immaterial in the facts and circumstances of this case. 6. In the case of Udya Naik v. Lokanath Naik and Ors. ILR 1954 Cuttack 298, a Division Bench of this Court overruling the previous decisions of the Patna and the Nagpur High Courts held that the invalidity of a transfer by a deed (in that case there was a gift) arises, not because of the non-registration of an otherwise compulsorily registrable document, but because by virtue of the contravention of Sub-section (3) of Section 46 of the Central Provinces Tenancy Act, the document could not be validly registered at all. Thus, by construing Section 46(5) along with the provisions of the Indian Registration Act and Section 123 of the Transfer of Property Act, Narasimham, J. (as my Lord then was) who wrote out the main judgment, held that the requirements about the compulsory registration of a deed of gift under the general law of transfer is not applicable where the transfer is of an occupancy holding to a person other than the persons specified in Sub-section (3) of Section 46. Thus, the sale-deeds in the present case are not hit by non-registration. Defendant-2 subject to (sic) minority could have avoided the sale under the provisions of Section 47(1) of the Central Provinces Tenancy Act within two years which he did not do. 7. Now, coming to the contention of Mr. Sen, he relied upon certain cases of the Calcutta, Bombay and Patna High Courts. But those decisions do not appear to support his contention at all. In the case of Kulchandra Ghose v. Jogendra Chandra Ghose and Ors. 7. Now, coming to the contention of Mr. Sen, he relied upon certain cases of the Calcutta, Bombay and Patna High Courts. But those decisions do not appear to support his contention at all. In the case of Kulchandra Ghose v. Jogendra Chandra Ghose and Ors. AIR 1933 Calcutta 411 Mookerjee, J. held that the essence of delivery of possession for a sale is no doubt that possession should change, but where the vendee is already in permissive possession of the property on the date of sale, it is enough for such delivery of possession to be sufficient within the meaning of Section 51 of the Transfer of Property Act if the character of his possession changes and this can be effects if the vendor converts by appropriate declaration or acts the previous permissive possession of the vendee into possession as that of a vendee. In the case of Tukaram Ganapatrao Surve v. Atmaram Vinayak Gondhalekhar and Ors. AIR 1939 Bombay 31, the facts were that the mortgagor of a usufructuary mortgage sold his equity of redemption to the vendee. It was provided in the contract of sale that the vendee was to payoff the mortgagee and (sic) the property. The vendee did in fact payoff the mortgagee on the (sic) day (sic) possession In these circumstances, it was held by a Division Bench that it could fairly be said that he got possession with the (sic) of the vendor which amounted to delivery of possession. Thus, the Calcutta and the Bombay decisions far from supporting the contention of Mr. Sen directly militate against his contention. Lastly, he referred us to a decision of the Patna High Court reported in Pheku Mian v. Syed Ali and Ors. AIR 1937 Patna 178, A Division Bench of that Court followed the earlier decision of the Calcutta. High Court, referred to above, and held that a delivery of possession when the property is in possession of the vendee can be made by the vendor making a declaration that hence forward whatever right he had has been transferred to the vendee. Where, therefore, the property in possession of a usufructuary mortgagee was sold to him by the mortgagor and the mortgagor renounced his right and got the same of the mortgage recorded in the record of rights it was sufficient compliance with the provisions of Section 54 of the Transfer of property Act. Where, therefore, the property in possession of a usufructuary mortgagee was sold to him by the mortgagor and the mortgagor renounced his right and got the same of the mortgage recorded in the record of rights it was sufficient compliance with the provisions of Section 54 of the Transfer of property Act. While coming to this decision the learned Judges relied upon a previous decision of their own Court in Santokhi Misser and Another Vs. Siro Jha and Others, and also on the decisions of Calcutta and Madras High Courts in Kulachandra Ghose v. Jogendra Chandra Ghose AIR 1933 Calcutta 411 referred to and discussed above and AIR 1925 Madras 566. In the instant case the finding is that the sale-deeds were genuine. Once the sale-deeds are held to be genuine, the mortgage must be held to have come to an end by virtue of the declaration made in the recitals in Ext. 1 series, and the delivery of possession will be deemed to have been effected by declaration in favour of the Plaintiffs' father. Hence the Patna view is also against his contention. Mr. Sen, thereafter, contended that even then no mutation in this case was effected. The simple answer to that contention is that mutation could not have been effected in this case since the transfer is invalid under the revenue law. Lastly, it was contended that if the partition-deed referred to by the Plaintiffs in their plaint had been produced, then it would have disclosed the true state of affairs, and since the partition deed has been withheld from the Court, the necessary inference should be drawn against the Plaintiffs. If the Defendants wanted to take advantage of this partition-deed, they could have called for the document from the custody of the Plaintiffs and if the Plaintiffs had not produced them, then certainly adverse inference could have been drawn against them, but the Defendants did nothing. Now that the final court of fact had believed the evidence of P. Ws. 1 to 3 and had come to the conclusion that sale-deeds were genuine, it is binding on this Court in second appeal. Now that the final court of fact had believed the evidence of P. Ws. 1 to 3 and had come to the conclusion that sale-deeds were genuine, it is binding on this Court in second appeal. Thus, in view of the recitals in those sale-deeds, the declaration made by the Defendants is enough for purposes of delivery of possession, and the Plaintiffs' father must be held to be in possession of the suit-lands by virtue of the aforesaid sale-deeds since 1932; and the suit having been filed on may 14, 1953, is well over the statutory period, and accordingly, the Plaintiffs must be held to have perfected their title by prescription. Thus, there does not appear to be any substance in the contention of Mr. Sen and the judgment and decree as passed by the learned District Judge seem to be unassailable. In the result, the appeal is dismissed with costs. Final Result : Dismissed