JUDGMENT N.N. Sharma, J. - This is a plaintiff,s appeal directed against judgment and decree of Sri Brij Mohan, learned 1st Additional District & Sessions Judge, Basti, dated 23-11-1974 in Civil Appeal No. 86 of 1973 arising out of original suit, 389 of 1968 decided by Sri Bhoj Raj Singh, learned Munsif Bansi, district Basti on 13-3-1973. The judgment of learned Munsif was reversed by the impugned judgment and decree and plaintiffs suit was dismissed with costs throughout. 2. Dispute relates to a house and courtyard denoted by letters ABCDEF in the site plan appended to the plaint. The adjoining house shown by letters ADPL and courtyard shown by letters ALKE belonged to defendant 1 Khalil. Defendants 2 and 3 are Ram Lal and Ram Raksha. Parties live and disputed property lies in village Kapia ShukulL Tappa Asnar, Pargana Bansi. These constructions and the courtyard lay in Bhumidhari plot 681/2 measuring two biswas and five ghurs as is obvious from the map of Amin who prepared a map to scale on 31-8-1969. 3. Plaintiff came to the court with the allegations that his house was a thatched structure and he wanted to reconstruct the same when Bhumidhars defendants 2 and 3 stood in his way. So plaintiff and defendant 1 paid a sum of Rs. 375/- to defendants 2 and 3 on 3-2-1964, respondents 2 and 3 executed a Panchnama by which they sold the aforesaid plot to plaintiff and defendant 1, parties constructed their houses adjoining each other on that site. No land was left in between the houses as relations between plaintiff and defendant 1 were cordial. 4. It was further averred that defendant 1 dishonestly, in collusion with defendants 2 and 3 procured a sale deed of the holding in his favour on 9-7-1968 without payment of any consideration. Since the time of this sale deed, defendant 1 started threatening plaintiff-respondent 1 that he would demolish his house and would make construction in his Sahan land. 5. Thus, the relief sought was for a perpetual injunction restraining the defendants from interfering in the possession of plaintiff over his house and courtyard shown above. 6. Defendants 2 and 3 did not contest the suit. 7. Claim was resisted by defendant 1 alone. 5. Thus, the relief sought was for a perpetual injunction restraining the defendants from interfering in the possession of plaintiff over his house and courtyard shown above. 6. Defendants 2 and 3 did not contest the suit. 7. Claim was resisted by defendant 1 alone. His contention was that plaintiff had no house on the dispute site prior to the abolition of Zamindari and so he could not acquire any right under S. 9, U.P. Zamindari Abolition and Land Reforms Act. He further pleaded that defendants 2 and 3 were Bhuntidhars of plot 681/2 which was in their cultivatory possession. Defendant 1 purchased this plot for a sum of Rs. 500/- on 10-1-1964 from defendants 2 and 3. Out of the sale consideration, a sum of Rs. 250/- had already been paid by him as earnest money on that date. After taking possession over the land, he first constructed the eastern portion of the house and then the western portion and thus the entire house and the courtyard was owned by him and he was in possession. Subsequently, the balance of sale consideration was paid to defendants-respondents 2 and 3 and on the receipt thereof, they executed a regular sale deed in his favour on 9th July, 1968. That sale deed was not fictitious. It was further pleaded that Ashiq Ali plaintiff colluded with defendant 1 and obtained a false sale deed executed in his favour by defendants 2 and 3 and got it ante-dated and on its basis, this false frivolous suit was filed. Pleas of limitation and estoppel were also raised. 8. Learned Munsif found that plaintiff was in possession of house ABCD and courtyard EFAB although he was not owner thereof, he further found that the claim was not barred by estoppel, he further found that the claim was not barred by time, he further found under issue 4 that plaintiff was in possession over the house and courtyard in dispute and had a right to exclude all trespassers and was well entitled to the relief of injunction. In the result, the suit was decreed with costs. Defendants were restrained perpetually from interfering with the possession of plaintiff over the disputed house and courtyard shown in the map 24-C except in due course of law. The map 24-C was ordered to form part of decree. 9. In the result, the suit was decreed with costs. Defendants were restrained perpetually from interfering with the possession of plaintiff over the disputed house and courtyard shown in the map 24-C except in due course of law. The map 24-C was ordered to form part of decree. 9. Defendant 1 preferred an appeal which was allowed by the impugned judgment and decree. Aggrieved by this decision, plaintiff had preferred this appeal. 10. I have heard learned counsel for the parties and perused the record. 11. Contention put forward on behalf of appellant before me was that the plaintiff could not be non-suited by execution of sale deed Ex. A-3 by defendants 2 and 3 in his favour on 9-7-1968. This sale deed was not executed for consideration which should have been paid in cash before the Registrar, defendants 1 to 3 were well aware of Ext. 3, earlier document of sale executed in favour of plaintiff and defendant 1 by defendants 2 and 3 and that sale, being prior in time was prior in law vide principle enunciated in S. 48 Transfer of Property Act. 12. Learned counsel for respondents argued that the sale deed Ext. 3 was unregistered and so could not be looked into nor override the cogent oral and documentary evidence filed in this case. There are Exts. A-3 and A-4 filed in defence to prove the aforesaid transaction. The marginal witnesses of these documents were Gajendra Nath (D. W. 1) and Rudra Shanker (D. W. 2) who testified about the execution of these documents. Khalil (D. W. 3) testified about the payment of Rs. 500/- by him to the vendors (defendants 2 and 3). He further testified that he got the disputed house constructed on the disputed land. Ashiq Ali used to reside in the house of his father and had no connection with this house. He expressed ignorance about Ext. 3. According to him, this house was built in the month of Phalgun or Chait by one Jugal who had not been examined in this case. 13. Plaintiff examined Ram Lal defendant 2 who testified that he and Ram Raksha were the Bhumidhars of this land. Eastern house was built by Ashiq Ali who was in possession thereof, house of Khalil adjoins it towards west. 13. Plaintiff examined Ram Lal defendant 2 who testified that he and Ram Raksha were the Bhumidhars of this land. Eastern house was built by Ashiq Ali who was in possession thereof, house of Khalil adjoins it towards west. Earlier it was a thatched house, when plaintiff and defendant 1 wanted to change it into tiled structure about eight years prior to his deposition on 20-2-1973, he came in the way. Plaintiff and defendant 1 jointly paid a sum of Rs. 375/- as compensation for which they executed Ext. 3, the Panchnama which was signed by him also. 14. Subsequently, they executed Exts. A-3 and A-4. A-4 in favour of defendant 1. The witness was cross-examined by plaintiff also as he prevaricated in the cross-examination. 15. Ratan (P. W. 2) claimed to have constructed this house at the expense of plaintiff who paid him the wages. His testimony was discarded by the learned lower appellate court on the ground that he was unsummoned witness although learned trial court believed him. Ashiq All (P. W. 3) supported his own case. 16. There are also on record two reports lodged at the police station by Ashiq All against Khalil etc. which were not referred by Ashiq Ali in his deposition and so they can't be looked into despite their relevancy under S. 35, Evidence Act. 17. Amin visited the spot and found both the portion of plaintiff and defendant 1 as separate and having different designs. 18. In the interest of justice, learned Munsif himself visited the spot on 10-3-1973 at about 4-30 P.M. in presence of parties and found that the constructions appeared to be a compact house. There was a continuity in the tiled thatched decipherable at the time of local inspection. He further found that the pillars of both the houses were of different sizes. Remnants of cattle trouph of defendant 1 as shown by the Amin in his map dated 31-8-1969 could not be found on the spot at the time of his local inspection. The disputed house was opened with the key supplied by plaintiff. Plaintiff also wanted to open the lock of verandah but it could no be opened as the lock had been tampered with. 19. The disputed house was opened with the key supplied by plaintiff. Plaintiff also wanted to open the lock of verandah but it could no be opened as the lock had been tampered with. 19. Learned lower appellate court discarded the appreciation of evidence by learned Munsif on the ground that plaintiff failed to prove the existence of thatched house on the spot for 20 or 22 years prior to the abolition of Zamindari, he further found that the defendant might have constructed both the houses which had the same design although there might not have been any connecting door between the two verandahs ABCD and ADPL. According to defendant 1, he built the eastern portion first and the western portion after a year. Under such circumstances, both the portions must have been identical and symmetrical. 20. So he found that defendant 1 was the owner of the disputed house and courtyard and thus the plaintiffs claim failed. 21. On a careful perusal of the facts, evidence and circumstances of the case, I find that there has been a failure of justice in this case. The findings recorded by the learned lower appellate court are simply perverse and unsustainable on evidence on record. My reasons are as given below : (i) Learned lower appellate court did not give any cogent reason for discarding the appreciation of oral evidence recorded by learned Munsif who had an occasion to observe the demeanour of witnesses. The testimony of Ratan (P. W. 2) who constructed the disputed house was lightly discarded in the absence of any such evidence on behalf of defendants. On this point, defendant 1 did not examine the person who built the disputed house. Had defendant 1 been owner in possession of the disputed house and plaintiff had absolutely no connection with the same, it could not be explained as to how the house was kept closed under the lock and key which was produced by plaintiff and not by defendant 1. The observations of learned Munsif in his report dated 12-3-1973 are unimpeachable and far outweigh the evidence adduced by the parties on the point of possession. This material circumstance is a pointer to the veracity of plaintiff and were un-noticed by learned Judge. (ii) Ext. 3 is not lightly discardable. The observations of learned Munsif in his report dated 12-3-1973 are unimpeachable and far outweigh the evidence adduced by the parties on the point of possession. This material circumstance is a pointer to the veracity of plaintiff and were un-noticed by learned Judge. (ii) Ext. 3 is not lightly discardable. If plaintiff was out to get a title deed forged in his favour and to get it ante-dated, it does not appeal to common sense as to why he got the name of defendant 1 inserted in it. He must have taken precaution its see that the name of Khalil does not occur in Ext. 3 as are of Vendees. Defendants - 2 and 3 (who) could have been the best persons on this point (of) time were not examined in defence but defendant 2 was examined by plaintiff. It is correct that defendants 2 and 3 might have been villan of piece in executing Exts. A-3 and A-4 in favour of defendant 1 when they had already conveyed this land to plaintiff and defendant 1 jointly by writing the document as panchnama which had been signed by so many persons of the village. All these Panchas could not have been party of this forgery at the instance of plaintiff had Ext. 3 been a forged document. (iii) It is further significant to note that Ext. 3 cannot be regarded as a waste paper although it is not drawn up as a formal deed nor it was registered in accordance with the requirement of S. 54, Transfer of Property Act. It is significant to note that in pursuance of this document plaintiff entered into possession and raised constructions. It had been established by evidence of unimpeachable character that he is still in possession and so he wants to protect his title by virtue of Ext. 3. He is not out of possession so far. He does not pray for recovery of possession on the basis of Ext. 3 but he wants to use it simply as a shield and not as a sword. In Tankan Lal v. Zila Parishad, reported in 1971 All WR (HC) 528 it was held that a transferee could maintain action for injunction to defend his possession by using a document under S. 53-A. Transfer of Property Act as a shield. A number of decisions were considered in that case which I need not repeat. In Tankan Lal v. Zila Parishad, reported in 1971 All WR (HC) 528 it was held that a transferee could maintain action for injunction to defend his possession by using a document under S. 53-A. Transfer of Property Act as a shield. A number of decisions were considered in that case which I need not repeat. So in pursuance of such permission. plaintiff entered into possession and executed a work of permanent character on the land. Even if the sale deed may be inoperative for want of registration and is reduced to a license, still that license shall be irrevocable under S. 60(2) Easement Act. For the aforesaid reasons. I find that the judgment of court below must be set aside. 22. In the result, the appeal succeeds and is allowed. The impugned judgment and decree are set aside. Plaintiffs suit is decreed in terms of the order recorded by the learned Munsif which is restored. Map paper No. 24-C shall form part of decree. Plaintiff shall get his costs from the contesting defendant throughout.