VORA IBRAHIM AKBARALI v. STATE — 1967 DIGILAW 88 (GUJ)

A. R. BAKSHI, V. R. SHAH, J. ( 1 ) THESE appeals relate to certain contracts regarding exploiting of certain kinds of trees and most of the material points which arise in these appeals are common. It would therefore be convenient to dispose of these appeals by one judgment though we shall deal with the facts and questions involved in each appeal separately. Letters Patent Appeal No. 12 of 1966. ( 2 ) THE appellant in this Letters Patent Appeal Vora Ibrahim Akbarali was the respondent in Second Appeal No. 756 of 1960 in the High Court of Gujarat and was the original plaintiff in Civil Suit No. 308 of 1957 in the Court of the Joint Civil Judge Senior Division at Baroda. The respondents are the State of Gujarat and the Chief Conservator of Forest who were the defendants in the suit. The original plaintiff had filed the suit on the basis of a contract with one Ranjitsinhji Gemalsinhji who was the occupant of certain lands covered by 104 survey numbers and situated on the out-skirts of Ronvad village and his case was that by a sale-deed dated June 23 1954 Ranjitsinhji had sold the Mahura and other miscellaneous trees standing on those survey numbers to the plaintiff. It was the case of the plaintiff that by virtue of the document which was passed by Ranjitsinhji in his favour he had a right to cut fell and transport the trees standing on those survey numbers and to convert them Into charcoal. According to the plaintiff his transferor Ranjitsinhji was the occupant of the lands on which the trees were standing and therefore he was the full owner of the trees over which by virtue of the aforesaid document the plaintiff had obtained title. According to the plaintiff the village was a Dumala village and Ranjitsinhji was the Dumaldar who had transferred the right to the trees and put them to use as provided In the document which was passed by the Dumaldar in favour of the plaintiff. According to the plaintiff the village was a Dumala village and Ranjitsinhji was the Dumaldar who had transferred the right to the trees and put them to use as provided In the document which was passed by the Dumaldar in favour of the plaintiff. The Forest Department had however refused to issue transport passes which would enable the plaintiff to remove the produce of the trees and it was this action of the State that was Challenged by the plaintiff who filed the suit for declaration of his title to the suit trees and also for an injunction restraining the defendants from interfering with the operation of felling and cutting of trees and removal of charcoal and other products from the area in dispute. The plaintiff prayed for an injunction compelling the defendants to issue the requisite transit passes. ( 3 ) THE defendants contested the suit on various grounds. The defendants denied that the plaintiff had any right over the suit trees and contended that the plaintiffs transferor had no rights to the trees standing on the suit lands and that therefore the plaintiff could not have any title in the suit trees. It was also contended that the suit lands were governed by the provisions of the Jagirs Abolition Act and that as some of the lands had remained uncultivated for a period of three years immediately preceding the date on which the Jagirs Abolition Act came into force the title of the Dumaldar to the waste lands and the trees standing on those lands was extinguished. It was also denied that the defendants or the Revenue Department of the State had recognized the rights of the plaintiffs transferor as the owner of the trees. ( 4 ) ON these pleadings the learned Civil Judge framed the following issues:-1 Is the suit against defendant No. 2 not maintainable for reasons stated in para 1 of the written statement exh. 13 ?2 Is it proved that the lands enumerated in para 1 of the plaint are waste lands and were not under cultivation for a period of three years prior to 1st August 1954 If so whether these lands vested in the State by virtue of the provisions of Jagirs Abolition Act. 13 ?2 Is it proved that the lands enumerated in para 1 of the plaint are waste lands and were not under cultivation for a period of three years prior to 1st August 1954 If so whether these lands vested in the State by virtue of the provisions of Jagirs Abolition Act. 3 Does the plaintiff prove his title and his vendor a title to the trees standing in the lands enumerated in para 1 of the plaint ?4 Does the plaintiff prove that the Revenue Authorities had recognised his vendors right and title to the lands enumerated in para No. 1 of the plaint ?5 Is it proved that the right of Dumaldars over the trees stand6 Is the plaintiff entitled to the reliefs indicated in para No. 11 of the plaint ?7 Has the plaintiff properly valued the claim for the purposes of pleader a fees ? If not what should be the proper valuation for that purpose ?8 What reliefs to the plaintiff ?9 What order ?the learned trial Judge came to the conclusion 1bat the suit lands were waste lands and were not under cultivation for a period of three years prior to August 1 1954 and that therefore these lands vested in the State on account of the provisions of the Jagirs Abolition Act. On these findings the learned Civil Judge held that the plaintiff had failed to prove his title to the trees standing on the suit lands and dismissed the plaintiff s suit. Against this judgment and decree of the learned Civil Judge the plaintiff preferred Appeal No. 130 of 1958 in the Court of the District Judge at Baroda. The learned District Judge allowed the appeal setting aside the decree of the trial Court. The learned District Judge held that the plaintiff had a right to cut and remove the trees purchased by him by virtue of the sale-deed which was passed in his favour and accordingly he granted a declaration in favour of the plaintiff. The learned District Judge also granted a mandatory injunction against the defendants from obstructing the plaintiff from cutting the trees and removing the wood and granted a mandatory injunction directing the defendants to issue transit permit to enable the plaintiff to remove the wood cut from the forest. The learned District Judge also granted a mandatory injunction against the defendants from obstructing the plaintiff from cutting the trees and removing the wood and granted a mandatory injunction directing the defendants to issue transit permit to enable the plaintiff to remove the wood cut from the forest. The learned District Judge also granted a period of two years to cut and remove the trees from the date of the permit to be granted by the Chief Conservator of Forest. Against this judgment and decree of the learned District Judge the defendants preferred Second Appeal No. 756 of 1960 in the High Court of Gujarat which was heard by Divan J. who by his judgment allowed the appeal and set aside the judgment and decree of the learned District Judge and restored the decree of the trial Court Against this decision of Divan J. the present Letters Patent Appeal No. 12 of 1966 has been preferred by the original plaintiff. ( 5 ) IT may be mentioned that pending the hearing of the second appeal before the High Court the original plaintiff had filed two Civil Applications before the High Court one of which was Civil Application No. 1258 of 1964 whereby the plaintiff applied that a document which came to be executed in January 1960 and which was duly registered and by which the original sale-deed of June 23 1954 was confirmed should be permitted to be taken on the record of the case and be produced in evidence as additional evidence. Another application which was given by the plaintiff was Civil Application No. 1259 of 1964 whereby the plaintiff applied for an amendment of the plaint seeking to join his transferor Ranjitsinhji Gemalsinhji as plaintiff No. 2. Both these applications were rejected by Divan J. The learned Advocate of the appellant has urged that the learned Judge was wrong in not allowing these two applications. As regards the application for giving additional evidence it was urged that the document which was intended to be brought on the record would complete the title of the plaintiff if it was found to be defective and that therefore that document should have been permitted to have been taken on record as additional evidence. Divan J. while deciding Application No. 1258 of 1964 considered the principle decided in Jehagirji Keravala v. Nariman 55 Bom. Divan J. while deciding Application No. 1258 of 1964 considered the principle decided in Jehagirji Keravala v. Nariman 55 Bom. L. R. 209 and rightly came to the conclusion that there was a long standing practice in the High Court of Bombay that Second Appeals were allowed to be withdrawn so that an appropriate application for review by a Court of facts i. e. the District Court could be made under the provision of Order 47 Rule 1 Civil Procedure Code. Divan J. also referred to the case of Shamsuddin v. Malannessa Bibi A. I. R. 1926 Calcutta 941 where it was held that the High Court in second appeal could not be considered to require any document to be produced or any witness to be examined to enable it to pronounce judgment on a question of fact. In the case before us the additional evidence which was sought to the produced in second appeal came into existence after the disposal of the first appeal by the learned District Judge and during the pendency of the second appeal in the High Court. Virtually what the plaintiff sought was that in the light of the additional evidence the question of fact should be decided by the High Court. This the learned Judge rightly did not permit the plaintiff to do. Divan J. was also right in not allowing the plaintiff to lead the additional evidence under sec. 151 of the Civil Procedure Code at the stage of second appeal. ( 6 ) DIVAN J. was also right in rejecting Civil Application No. 1259 of 1964 on the ground that if the application was granted it would result In addition of a party who was not included in the notice given to the State under sec. 80 of the Civil Procedure Code. It is an admitted position that the name of Ranjitsinhji Gemalsinhji whose name was sought to be added as a party was not mentioned in the notice given to the State. If Ranjitsinhji was added as a party several new considerations of importance might arise and it would not be proper to permit the plaintiff to join a new party at the stage of second appeal. If Ranjitsinhji was added as a party several new considerations of importance might arise and it would not be proper to permit the plaintiff to join a new party at the stage of second appeal. ( 7 ) THE main points of law which were urged before Divan J. in the second appeal have been summarized in judgment as under:- (1) That the lands in question were either waste or uncultivable and had therefore vested In the State of Bombay under sec. 8 of the Bombay Merged Territories and Areas (Jagirs Abolition) Act 1953 (Bombay Act No. 39 of 1954) which came into force on August 1 1954 (hereinafter referred to as the Jagirs Abolition Act ). (2) That the document in question by virtue of which the plaintiff claimed to have purchased the right to cut the trees and the trees themselves requires registration and therefore by the document of purchase dated June 23 1954 Ex. 24 on the record of the case which is not a registered document the plaintiff had not acquired any title and no right passed to the plaintiff. Under these circumstances no title to the property was conveyed. ( 8 ) WE shall first deal with the question whether the document dated June 23 1954 Ex. 24 requires registration under the provisions of the Registration Act. It may be mentioned that the plaintiffs interest and title in the suit trees depends on the document Ex. 24. In other words Ex. 24 is a document of title on the basis of which he has brought the suit. If it is held that the document Ex. 24 is compulsorily registrable then that document would not affect the property which is the subject matter of that document and no title would pass to the plaintiff In the suit trees which at the date of the document were standing on the lands mentioned in the document. It would therefore be necessary to see what is the nature of the document Ex. 24 and after looking to its material provisions to decide whether by that document what is sought to be transferred is a right in relation to immovable property. Ex. 24 is executed between the plaintiff and Ranjitsinhji Gemalsinhji. It would therefore be necessary to see what is the nature of the document Ex. 24 and after looking to its material provisions to decide whether by that document what is sought to be transferred is a right in relation to immovable property. Ex. 24 is executed between the plaintiff and Ranjitsinhji Gemalsinhji. It is stated in that document that in the 104 survey numbers of Ronvad village which are in the name of Ranjitsinhji Mahura trees and other miscellaneous trees were sold for a consideration of Rs. 3001/to the plaintiff. The document was executed on June 23 1954 and an amount of Rs. 251/was paid by way of earnest money at the time of the execution of the document. The balance of the consideration amount was agreed to be paid when the necessary authorizations and permits from the Forest Department were obtained. The first part of the document recites that:-I do hereby execute this deed in writing that I have sold to you for Rs 3001/-in words rupees three thousand one the Mahuda and Atakati (miscellaneous) trees standing on the below mentioned survey numbers of my ownership standing on my name at the village Ronvad and I have received from you today Rs. 251. 00in words rupees two hundred fifty one towards the earnest money. The balance of the amount shall be payable by you to me on receipt of the authority and the passes from the Forest Department. Then follow the particulars of the survey numbers standing in the name of Ranjitsinhji and thereafter it is stated in the document that:-THE aforesaid survey numbers are of my ownership and possession and the Mahuda and Panchrav (Miscellaneous) trees standing thereon have been sold to you. As the said trees on account of shade are damaging my agricultural crops in order to take more crop you are given a right to clear cut the said trees and remove the same. It appears from the above terms of the document that it relates to Mahuda and Atakati trees and Mahuda and Panchrav trees and it is not disputed before us that the words Atakati and Panchrav mean miscellaneous trees. It appears from the above terms of the document that it relates to Mahuda and Atakati trees and Mahuda and Panchrav trees and it is not disputed before us that the words Atakati and Panchrav mean miscellaneous trees. We may now refer to clause 2 of the document which is as under:-YOU are given a right to cut the Mahuda and the Panchrav trees to take out timber and fire wood and coal out of the same and to remove the same away. That clause again repeats the words Mahuda and Panchrav trees that were mentioned in clause I of the document referred to above. Clause 4 of the agreement again refers to the words Mahuda and Panchrav and states that as the said Mahuda and Panchrav trees that were sold were of the ownership of the transferor as a Khatedar the same were sold to the transferee and possession thereof was given to him. Clause 3 of the document provides for the time limit for cutting and removing the goods. That clause states:-THE time limit for cutting and removing away the goods is fixed at three years from the receipt of the authority and passes from the Forest Department. It will be seen that under the document the right is given to the plaintiff to cut not only Mahuda trees but also other miscellaneous trees and to take away the timber fuel wood and charcoal. The question that has arisen before us is whether in view of the terms and provisions in Ex. 24 that document is compulsorily registrable. Sec. 2 (6) of the Registration Act defines the words immovable property as under:-IMMOVABLE property includes land buildings hereditary allowances rights to ways lights ferries fisheries or any other benefit to arise out of land and things attached to the earth or permanently fastened to anything which is attached to the earth but not standing timber growing crops or grass. Sec. 2 (9) of the Registration Act defines moveable property as under :-MOVEABLE property includes standing timber growing crops and grass. fruit upon and juice in trees. and property of every other description except immovable property. Sec. 2 (9) of the Registration Act defines moveable property as under :-MOVEABLE property includes standing timber growing crops and grass. fruit upon and juice in trees. and property of every other description except immovable property. It would be seen that according to the aforesaid definition of immovable property standing timber growing crops and grass could not be considered as immoveable property as they are not only excepted from the definition of immoveable property but they are expressly included in the definition of moveable property in sub-sec. (9) of sec. 2. We are here not concerned with growing crops or grass but we are here concerned with standing timber. The main contention urged on behalf of the plaintiff was that the trees which are the subject matter of the document Ex. 24 and which have been permitted to be cut by the plaintiff would fall within the term standing timber and that therefore the document would not require re-ristration. This would undoubtedly be so if we accept the contention made on behalf of the plaintiff that the document Ex. 24 relates to rights in regard to standing timber. Now it would be seen that the definition clause in sec. 2 of the Registration Act in relation to immovable property excludes standing timber from being included In the category of immovable property. The words used are standing timber and therefore in order to fall within the exception it would be necessary to show that what is sought to be excepted is firstly timber and secondly that such timber is standing. As would appear from the definition and description of the word timber as given by Webster it would appear that timber is that sort of wood which is suitable for building houses ships and the like In the 2nd volume of Websters New Twentieth Century Dictionary the word timber is defined as under :-2 Wood suitable for building houses ships etc. whether cut or in the form of trees. 3 trees collectively. Natives Began to appear from the bamboo thickets and the intricate pathways through the timber. Gen. Charles King. 4 a large piece of dressed wood for building; a beam. 5 personal quality or character; as a man of his timber. 6 Iumber (Brit ). 7 Timberland. 8 In shipbuilding one of the curved frames which form the ribs or a ship. Gen. Charles King. 4 a large piece of dressed wood for building; a beam. 5 personal quality or character; as a man of his timber. 6 Iumber (Brit ). 7 Timberland. 8 In shipbuilding one of the curved frames which form the ribs or a ship. 9 The wooden part of something as the handle of a Weapon (Obs. ). It would thus appear that in substance what is meant by timber is that the wood should be fit for use for such purposes as the construction of buildings etc. Mr. Oza urged that in substance and effect if the document related to such trees as could be considered as timber trees the document must be considered as one dealing with moveable property. According to the learned advocate for the appellant almost all trees which were not purely fruit trees would fall within the definition of timber and as the document Ex. 24 substantially related to such trees It could not be considered to relate to immovable property. Reference was made to the case of Nanhe Lal v. Ram Bharose A. I. R. 1938 Allahabad 115 in which a transaction related to certain Shisham and nim trees standing on land. In that case the relevant observations are at page 116. we however think that the lower Appellate Court is wrong in thinking that this so-called grove constituted immovable property. The trees were timber trees which were shisham and nim and not ordinary fruit trees. Under sec. 3 T. P. Act the definition of immovable property does not include standing timber. The mortgage deed therefore did not come under Ch. 4 T. P. Act at all as it was a hypothecation of moveable property only. These observations clearly show that the document in that case related only to Shisham and nim trees and it does not appear that any argument was addressed as to whether these two categories of trees would not yield timber which would be fit for use for structural purposes. There does not appear to be any discussion on this aspect of the matter as to whether the trees would be fit for being cut within the reasonable time to yield timber for being used for building purposes. This authority therefore is not of much help in supporting the argument made on behalf of the appellant. There does not appear to be any discussion on this aspect of the matter as to whether the trees would be fit for being cut within the reasonable time to yield timber for being used for building purposes. This authority therefore is not of much help in supporting the argument made on behalf of the appellant. Reference was made to the case of Baijnath v. Ramadhar A. I. R. 1963 Allahabad 214. In that case the learned Chief Justice observed that trees were generally divisible into two classes; (1) fruit bearing tree and (2) timber trees. It was observed that a fruit bearing tree was meant to remain standing because it was only when it was standing that it could bear fruits; whereas a timber tree on the other hand was meant to be cut down and it was only after it was cut down that Its trunk and other parts could be used as timber. The learned Chief Justice in his judgment observed that a timber tree did not cease to be a timber tree because its owner had no present intention of cutting or felling it and that whether a tree was a timber tree or not depended upon its nature and the use to which it was generally put and not upon whether there was a present intention In the mind of its owner of cutting it sooner or later The learned Chief Justice in other words held that the test was an objective test and not 8 subjective test. Beg J. although he concurred with the operative portion of the judgment to the effect that the appeal should be allowed did not agree with the above reasoning of the learned Chief Justice. According to Beg 1 the determining factor in such cases would be the intention of the parties as determined by the circumstances of each case and the nature of the transaction and that if all these factors indicated that parties intended to deal with the tree as timber then alone it could be called standing timber. It may be observed that the words used in sub-sec. (6) of sec. 2 of the Registration Act as well as in sec. 3 of the Transfer of Property Act while referring to what constitute immovable property are standing timber and not timber trees. It may be observed that the words used in sub-sec. (6) of sec. 2 of the Registration Act as well as in sec. 3 of the Transfer of Property Act while referring to what constitute immovable property are standing timber and not timber trees. It appears that trees generally are regarded as immovable property as they are attached to the earth and sub-sec. 6 of sec. 2 of the Registration Act only excepts standing timber and not all kinds of trees. The difference between standing timber and a tree has been noted in the Judgment of Bose J. in Shantabai v. State Bombay A. I. R. 1958 Supreme Court 532 At page 536 of the report the difference has been noted in the following observations:-NOW it will be observed that trees are regarded as immovable property because they are attached to or rooted in the earth. Sec. 2 (6) of the Registration Act expressly says so and though the Transfer of Property Act does not define immovable property beyond saying that it does not include standing timber growing crops or grass trees attached to earth (except standing timber) are immovable property even under the Transfer of Property Act because of sec. 3 (26) of the Central Clauses Act. In the absence of a special definition the general definition must prevail. Therefore trees (except standing timber) are immovable property. Now what is the difference between standing timber and a tree ? It is clear that there must be adistinction because the Transfer of Property Act draws one in the definitions of Immovable property and attached to the earth; and it seems to me that the distinction must lie in the difference between a tree and timber. It is to be noted that the exclusion is only of standing timber and not of timber trees. Thereafter the judgment proceeds to consider what is timber and standing timber. As regards the word timber referring to a quotation from Websters Collegiate Dictionary it is stated in the judgment that timber is well enough known to be-wood suitable for building houses bridges ships etc. Thereafter the judgment proceeds to consider what is timber and standing timber. As regards the word timber referring to a quotation from Websters Collegiate Dictionary it is stated in the judgment that timber is well enough known to be-wood suitable for building houses bridges ships etc. whether on the tree or cut and seasoned and it is further stated that therefore standing timber must be a tree that is in a fit state for these purposes and that a tree that was meant to be converted Into timber 60 shortly that it could already be looked upon as timber for all practical purposes even though standing. It would thus appear that in order to constitute standing timber a tree must be in a state fit for purposes such as building houses and must also be meant to be converted into timber within a reasonable period of time. The relevant observations on this in the judgment are at page 536 where it has been stated thattimber is well enough known to be-wood suitable for building houses bridges ships etc. whether on the tree or cut and seasoned. (Websters Collegiate Dictionary) Therefore. standing timber must be a tree that is in a state fit for these purposes and further a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still standing. If not it is still a tree because unlike timber it will continue to draw Sustenance from the soil. Now of course a tree will continue to draw sustenance from the soil so long as it continues to stand and live; and that physical fact of life cannot be altered by giving it another name and calling it standing timber. But the amount of nourishment it takes if it is felled at a reasonably early date is so negligible that it can be ignored for all practical purposes and though theoretically there is no distinction between one class of tree and another if the drawing of nourishment from the soil is the basis or the rule as I hold it to be the law is grounded not so much on logical abstractions as on sound and practical commonsense. It grew empirically from instance to instance and decision to decision until a recognisable and workable pattern emerged; and here this is the shape it has taken. The distinction set out above has been made in a series of Indian cases that are collected in Mullas Transfer of Property Act 4 edition at pages 16 and 21. At page 16 the learned author saysstanding timber are trees fit for use for building or repairing houses. This is an exception to the general rule that growing trees are immovable property. At page 21 he saystrees and shrubs may be sold apart from the land to be cut and removed as wood and In that case they are moveable property. But if the transfer includes the right to fell the trees for a term of years so that the transferee derives a benefit from further growth the transfer is treated as one of immovable property. The learned author also refers to the English Law and says at page 21in English Law an unconditional sale of growing trees to be cut by the purchaser has been held to be a sale of an interest in land; but not so if it is stipulated that they are to be removed as soon as possible. In my opinion the distinction is sound. Before a tree can be regarded as standing timber it must be in such a state that if cut it could be used as timber; and when in that state it must be cut reasonably early. The rule is probably grounded on generations of experience in forestry and commerce and this part of the law may have grown out of that. It is easy to see that the tree might otherwise deteriorate and that its continuance in a forest after it has passed its prime might hamper the growth of younger wood and spoil the forest and eventually the timber market. But however that may be the legal basis for the rule is that trees that are not cut continue to draw nourishment from the soil and that the benefit of this goes to the grantee. It would thus appear from the above observations that in order to constitute standing timber the first ingredient that should be fulfilled would be that it must be timber i. e. wood suitable for building houses bridges Ships etc. It would thus appear from the above observations that in order to constitute standing timber the first ingredient that should be fulfilled would be that it must be timber i. e. wood suitable for building houses bridges Ships etc. and secondly the tree must be in a state fit for these purposes and should be meant to be converted into timber so shortly that it could already be looked upon as timber for all practical Purposes even though standing. It would therefore be necessary to apply this test while determining the question whether the trees that were the subject matter of the document in each of the cases on which the suit was based were standing timber or not. ( 9 ) WE have already set out the relevant terms of the document Ex. 24 which is the basis of the suit in this case. The trees which are sold are Mahuda and Atakati trees which obviously will include all kinds of trees. Similarly the words Mahuda and Panchrav trees used in the document will also include all kinds of miscellaneous trees-whether trees which would yield timber or wood fit for construction of building etc. or not. The document further provides for taking away not only timber but fire wood and coal as well. The document Would therefore include all tree Which would be capable of giving firewood or coal also Moreover the trees which are the subject matter of the contract would include saplings and young trees which would not be fit for use as timber even though the trees belonged to the category of timber tree. The trunk of saplings or immature young trees would not be fit for use as timber on being cut and yet it would be included within the trees that could be cut according to the contract. Even amongst the trees described as Mahuda trees assuming that Mahuda trees are timber trees all sorts of Mahuda trees which are mature or immature would be liable to be cut under the contract and trees which would not be fit to be used as timber at the date of the contract or within a reasonable time thereafter would also be liable to be cut under the agreement. The plaintiff would thus be entitled under the contract to cut trees which do not fall within the category of timber trees and would also be entitled to cut trees which are not immediately fit to be used as timber and no restriction is placed in the agreement against cutting trees which do not yield timber or trees the wood of which would not be fit for use if cut as timber. There can therefore be no doubt about the fact that the document also includes trees which could not be called standing timber within the meaning of sub-sec. 6 of sec. 2 of the Registration Act. Moreover trees which would not be fit at the date of the contract might become fit to be used as timber within the period during which the plaintiff was allowed to cut the trees. But even if we do not consider this last factor in view of the fact that the period is only 3 years there is no doubt about the fact that other trees and non-timber trees are also permitted to be cut under the contract. There is also no restriction to cut trees which could be classified as purely fruit trees which would not yield timber but which might yield fire-wood or which could be converted into coal. The learned advocate for the appellant had urged that there is a clause in the document which reveals the purpose for which the trees were to be cut and that purpose was the trees that were standing were on account of their shade damaging the agricultural crops. But such a statement in the document would hardly supply any clue for the determination of the question whether the trees that were to be cut were standing timber or not. All types of trees whatever their nature would yield some shade irrespective of the fact whether those trees were timber trees or trees of other kinds. Reading the document as a whole it appears to be clear that the trees which are permitted to be cut under the contract include non-timber trees as well and other miscellaneous trees. The document could thus be described as composite document which would include trees which would yield timber as well another trees of all kinds. The question therefore would be whether such a composite document would require registration. The document could thus be described as composite document which would include trees which would yield timber as well another trees of all kinds. The question therefore would be whether such a composite document would require registration. The argument of the learned advocate for the appellant was that the contract relating to standing timber i. e. moveable property was severable and that therefore such a contract would not be compulsorily registrable. Now as we read the contract there is no method of ascertaining how many trees could be classified as standing timber and as trees which would not fall within this category as standing timber in the forest. It is further not possible to divide the agreement into two parts one of which would be unconnected with the other. The consideration of the entire agreement is fixed in one lump sum and the divisibility of claims relating to moveable and immoveable property is also not possible. The principle on which the case of Firozshah Delibhoi v. Najamal Rustomji 49 B. L. R. 303 was decided cannot therefore be made applicable to the facts of the present case. In that case a testator bequeathed his property to his brothers and to his widow only a right of maintenance out of the property. An agreement was arrived at between the brothers and the widow by which the will was affirmed and it was agreed that in order to save disputes the widow should receive an enhanced maintenance and a right of residence in houses belonging to the family. That agreement was not registered and in a suit by the widow claiming maintenance and residence under the agreement the question arose whether the document as a whole could be received in evidence of the agreement which it contained and it was held that the agreement could be used in evidence of the widows claim for maintenance which was clearly divisible from her claim for residence. At page 306 Macklin J. has observed that:-IN this case it cannot be held that the claim for maintenance and the claim to residence in any way depend upon each other. Each is mentioned in the agreement it is true; but the agreement does not connect them together in any way except in so far as it provides one consideration for the agreements as a whole. Each is mentioned in the agreement it is true; but the agreement does not connect them together in any way except in so far as it provides one consideration for the agreements as a whole. In the case before us no two divisions of the agreement could be made one being unconnected with the other. Reference was also made to the case of Shree Ambarnath Mills Corporation Bombay v. D. B. Godbole Custodian of Evacuee Property A. I. R. 1957 Bombay 119 but the facts of that case were entirely different from the facts of the present case as it appears from the observations made at page 125 of the report that the agreement to demise land was severable from the agreement to sell the mills and the factory and the three agreements although incorporated in one single document were held to be substantially three distinct agreements the terms of which were severable. The document Ex. 24 as already stated includes all kinds of trees irrespective of the fact whether they are fit to be used as timber and also irrespective of the fact whether they are fit to be used as timber if cut within a reasonable time. The trees therefore that are permitted to be cut by the document cannot fall within the meaning of standing timber and therefore the document Ex. 24 must be held to relate to immovable property within the meaning of sec. 2 (6) of the Registration Act. That being so the document would be compulsorily registrable under sec. 17 of the Registration Act and by virtue of sec. 49 of that Act such a document cannot affect any immovable property comprised therein or be received as evidence in any transaction affecting such property. We would therefore for the reasons stated above agree with the view taken by Divan J. on this question. ( 10 ) IT was urged on behalf of the appellant that the point of registration could not be urged for the first time in second appeal. For this contention reliance was placed upon the case of Kalyanpur Lime Works Ltd. v. State of Bihar A. I. R. 1954 S. C. 166 and urged that an objection relating to the legality or validity of a contract could not be urged at such a late stage. For this contention reliance was placed upon the case of Kalyanpur Lime Works Ltd. v. State of Bihar A. I. R. 1954 S. C. 166 and urged that an objection relating to the legality or validity of a contract could not be urged at such a late stage. Reference also was made to the provisions contained in Order 6 rule 8 and Order 8 rule 2 of the Civil Procedure Code. Rule 8 of Order 6 of the Civil Procedure Code lays down that where a contract is alleged in any pleading a bare denial of tine same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied and not as a denial of the legality or sufficiency in law of such contract. Rule 2 of Order 8 pleading that the defendant must raise by his pleading all matters which show the suit not to be maintainable or that the transaction was either void or voidable in point of law and all such grounds of defence as if not raised would be likely to take the opposite party by surprise or would raise issues of fact not arising out of the plaint as for Instance fraud limitation release payment performance or facts showing illegality. Now in the case cited by the learned advocate for the appellant the suit was for specific performance of a contract made by plaintiff-Company with the Government and one of the issues in that suit was whether there was any legal valid and binding contract between the plaintiff and the defendant and whether any such contract could be enforced. At the hearing of the appeal a question was raised as to the legality of the contracts on the ground that the contract did not conform with sec. 30 of the Government of India Act 1915 which required certain types of contracts to be executed in a particular manner and by a particular person. On behalf of the plaintiff an objection was raised that the new question that was sought to be raised involved investigation Into the fact whether the draft leases bore the signature of the appropriate authority and that the plaintiff had no opportunity to adduce necessary evidence in the trial Court to meet the point. On behalf of the plaintiff an objection was raised that the new question that was sought to be raised involved investigation Into the fact whether the draft leases bore the signature of the appropriate authority and that the plaintiff had no opportunity to adduce necessary evidence in the trial Court to meet the point. Under these circumstance it was held by the Supreme Court that the High Court was not justified in allowing such question to be raised at the time of arguments when the plaintiff had no opportunity to adduce evidence upon the question of fact. In the judgment of the Supreme Court the relevant observations are at page 169 as under:-IT is urged on behalf of the plaintiff and in our opinion rightly that the objection founded on sec. 30 involves investigation into the fact whether the draft leases bore the signature of the appropriate authority on behalf of the Government and the plaintiff had no opportunity to adduce necessary evidence in the trial Court to meet the point. It appears that the Lime Co. sent six copies of draft leases exhibits 22 and 22 (a) to defendant No. 1. These leases are undoubtedly signed on behalf of the plaintiff but the signature of the Collector who was competent to sign on behalf of the Government is wanting The Government produced two copies only but withheld the other four. It is contended that had the other four leases been produced they would have shown that they bore the signature of the Collector on behalf of the Government. . . . . . . . . . . . . . . IN view of these facts it seems to us clear that the High Court was not justified in allowing this question to be raised at the time of the arguments when the plaintiff had no opportunity to adduce evidence upon the question of fact whether the leases were signed on behalf of the Government. It is also clear that despite the best efforts of the plaintiff the Government withhold the production of the other leases. Without going further into the matter we shall rest our decision on the ground that the question ought not to have been allowed to be raised and we accordingly reject the plea founded on sec. 30 on this ground. It is also clear that despite the best efforts of the plaintiff the Government withhold the production of the other leases. Without going further into the matter we shall rest our decision on the ground that the question ought not to have been allowed to be raised and we accordingly reject the plea founded on sec. 30 on this ground. The learned advocate of the appellant referred to an unreported decision of Bavdekar J. in First Appeal No. 591 of 1954 dated 20th December 1955 From the judgment it appears clear that the point about the registration of the document required an investigation of facts before it could be decided. It has been observed in the judgment thatit seems to me however that this point involves investigation of facts and cannot be taken up for the first time in appeal. The first question which it raises is of registration though it could easily be ascertained whether the decree is registered or not. But the second point is much more important and that is that the original decree contemplates that even the interest of Lalbhai in the two watan properties was to be brought to sale. Half a share in the watan properties was therefore the subject matter of the suit and in so far as the compromise decree provides for the sale of half a share in those properties the decree undoubtedly did not require registration. It is contended however that what happened at the time of the resumption and the regrant was that Lalbhais share was resumed if not the share of the others also and the whole of the property was regranted to the two widows. Now what would ordinarily be regranted to the widows would be what Lalbhai had and that would be his half share. What was regranted to the widow is again a question of fact. Even upon the assumption however that Lalbhai had only got a half an interest in the watan property and even so the whole of the property was granted to the widows in order to decide whether the deed required registration it would be necessary to find out what was the value of the half share not comprised in the suit in the watan properties which are sought to be brought to sale. It is contended that there is some evidence on the record in order to establish the question. It is contended that there is some evidence on the record in order to establish the question. It seems to me that that does not make any difference. If the point had been made it would have been open to the decree holder to lead evidence to contradict whatever the evidence relied upon shows. The point involves facts and cannot be allowed to be taken up for the first time in appeal. ( 11 ) THE learned advocate for the appellant also relied on the case of Beharilal v. Amin Chand A. I. R 1934 Allahabad 916. In that case on the facts before it the High Court held that the document was admitted without question in the trial Court and even in the appellate Court and even if the document in dispute was rejected for want of registration that would not result in the dismissal of the suit as quite apart from the document there was a finding of fact based on oral evidence that ground rent was regularly paid for the site by the appellants predecessor and that the appellant had taken his sale-deed with full knowledge of the plaintiffs rights. The case before us is not a case where document has not been regularly proved or that there is a defect in the manner of proof or where it would be necessary to go into facts before the question of registration could be decided. The document in the present case on the face of it shows that it includes trees which could not be considered as standing timber and therefore would not fall within the exception provided in sub-sec. 6 of sec. 2 of the Registration Act. Here by virtue of the provisions of sec. 49 of the Registration Act the unregistered document would not affect the immovable property comprised therein nor could such a document be received as evidence of any transaction affecting such property. If the document required compulsory registration the question would go to the root of the matter as such a document would pass no title in the immovable property which is the subject matter of the document. Divan J. was therefore justified in entertaining the plea that the document would pass no title in the plaintiff as the same was not registered. Divan J. was therefore justified in entertaining the plea that the document would pass no title in the plaintiff as the same was not registered. Reference was also made to the case of Ganpatrao Shivaram v. Anant Ramchandra reported in A. I. R. 1954 Madhya Bharat 26 but what was held in that case was that the effect of an unregistered instrument which was required to be registered would be that it could not be received as evidence of any transaction affecting the property under sec. 49 Registration Act but where there was no dispute between the parties as regards the transaction affecting the property the question of proving the transaction by any evidence did not arise and consequently the fact that the document was unregistered became wholly immaterial. That case therefore cannot support the argument advanced by the learned advocate of the appellant. ( 12 ) IT was then urged by the learned advocate of the appellant that Divan J. should have remanded the matter back to the trial Court so that a proper issue regarding the point of registration could be framed and the matter could be decided after the attention of the parties was drawn towards the question of registration. But as stated earlier the terms of the document clearly show what was the subject matter of the contract between the parties and what trees were permitted to be cut by the plaintiff The entire matter in this case depends on the terms of the document and what was meant by the parties in arriving at the agreement has to be gathered from the terms of the document itself and it appears that the determination of the question of registration does not in this case involve any investigation into facts. Divan J. was therefore right in not acceding to this request for remand. ( 13 ) THE aforesaid discussion leads us to the conclusion that the document Ex. 24 requires registration and that document as it is unregistered cannot vest any right or title in the plaintiff. ( 14 ) IN view of the above conclusion the question whether the transferor at the date of the agreement had any transferable rights in the trees which are the subject matter of Ex. 24 does not have much importance. This question was urged by the learned Assistant Government Pleader who contended that by virtue of sec. ( 14 ) IN view of the above conclusion the question whether the transferor at the date of the agreement had any transferable rights in the trees which are the subject matter of Ex. 24 does not have much importance. This question was urged by the learned Assistant Government Pleader who contended that by virtue of sec. 3 of the Jagirs Abolition Act all the rights of the transferor were extinguished and that therefore the plaintiff would get no rights under Ex. 24 his transferor having lost all his rights by virtue of sec. 3 of the Act The reply that was given by the learned advocate for the appellant to this argument was that the rights of transferor of the plaintiff were saved by sec. 6 of the Jagirs Abolition Act or in the alternative. by sec. 8 of that Act. Now the provisions contained in sec. 8 of the Jagirs Abolition Act clearly save the right of any person other than the Jagirdar which can be established in or over the land and therefore if the document Ex. 24 validly transferred any rights in favour of the plaintiff such rights obviously would be saved by the provisions of sec. 8 of the Jagirs Abolition Act. This question has been elaborately discussed by us in our judgment In Letters Patent Appeal No. 1 of 1966. ( 15 ) SINCE however our finding on the question of registration of the document Ex. 24 is against the plaintiff that document does not for that reason convey any right in the plaintiff and therefore the question whether rights of the plaintiff are saved under the Jagirs Abolition Act or not or whether the rights of the transferor of the plaintiff were extinguished or not does not have much importance. ( 16 ) IT was urged by the learned advocate of the appellant that even if the Court held that the document required compulsory registration and for that reason did not transfer any right in the plaintiff the plaintiff would be entitled to rely on sec. 53a of the Transfer of Property Act. It was argued that there was part performance of the contract and that therefore in the light of the provisions of sec. 27a of the Specific Relief Act and sec. 53a of the Transfer of Property Act proper relief can be given to the plaintiff in this case. 53a of the Transfer of Property Act. It was argued that there was part performance of the contract and that therefore in the light of the provisions of sec. 27a of the Specific Relief Act and sec. 53a of the Transfer of Property Act proper relief can be given to the plaintiff in this case. Sec. 27a of the Specific Relief Act provides that where a contract to lease immovable property is made in writing signed by the parties thereto or on their behalf either party may notwithstanding that the contract though required to be registered has not been registered sue the other for specific performance of the contract. But the present suit is not against the lessor and is not for specific performance of the contract but is a suit to enforce the rights under the contract against a third party and in such a suit the plaintiff wishes to enforce the rights which he claims to have derived under the document. The Provisions of sec. 27a of the Specific Relief Act therefore cannot be of any assistance to the plaintiff. As regards sec. 53a of the Transfer of Property Act that section provides that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has in part performance of the contract taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract and the transferee has performed or is willing to perform his part of the contract then notwithstanding that the contract though required to be registered has not been registered or where there is an instrument of transfer that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession other than a right expressly provided by the terms of the contract. In the case before us the State Government or the Chief Conservator of Forest is not the transferor or a person claiming from the transferor of the plaintiff and secondly the doctrine of part performance as provided for in sec. 53a of the Transfer of Property Act is not available to plaintiff who bases his suit and his title in the suit on such a document. In Khan Bahadur Mian Pir Bux v. Sardar Mahomed Tahar 36 Bom. L R. 1195 P. C it was pointed out that under sec. 53a of the Transfer of Property Act a defendant may in certain circumstances plead possession under an unregistered contract of sale. A similar view was expressed in the case of Prabodh Kumar Das. v. The Dantmare Tea Co. Ltd. 42 Bom. L. R. 199 P. C. where it was pointed out that sec. 53a of the Transfer of Property Act confers a right of section on a transferee in possession under an unregistered contract of sale; but it confers a right which would be available to a defendant to protect his possession. The learned advocate for the appellant referred to the case of Govindraju v. Vinayak A. I. R. 1963 Madras 310 where it was held that the doctrine of part performance is an equitable doctrine designed to relieve the rigour of law and provide a remedy when a transfer or an agreement for transfer falls short of the requirements laid down by law. The scope of the right conferred by sec. 53a of the Transfer of Property Act has been explained by the Privy Council in the two cases referred to above i. e. 36 Bom. L. R. 1195 and 42 Bom. L. R. 199 and having regard to the principle decided in those two decisions it appears to be clear that the doctrine of part performance as embodied in sec. 53a of the Transfer of Property Act cannot be utilised by the plaintiff so as to enable him to avoid the effect of want of registration of the document on the basis of which he had brought the present suit. [the rest of the judgment is not material for the reports. ] letter Patent Appeal No. 12 of 1966 dismissed. .