JUDGMENT S. Roy, J. The defendants are the appellants. The respondent filed the suit for redemption of the suit property said to have been given on usufructuary mortgage by them to the appellant orally for securing Rs. 150/-. The trial court held that as the zarpeshgi was given orally and not by a registered instruments no decree for redemption could be passed. The lower appellate court held that although zarpeshgi was oral the respondent were entitled to redeem the same. 2. At the time of hearing the only substantial question of law which arose for decision and which was pressed was question no (i) framed on 26.4.86 namely : Whether the appellate court is right in setting aside the decree of the trial court basing its decision on an oral zarpeshzi deed ? It is, therefore, not necessary to go into the facts in detail for disposing of this appeal. 3. Admittedly some joint family properties were partitioned between the parties and two schedules were prepared. The land in schedule one as allotted to the share of the plaintiff's and the land in schedule two was allotted to the share of the defendants. The parties executed and registered an instrument which was marked Ext. 1. Plot no. 781, the subject matter of the suit, was mentioned in the schedule of the defendants and against that it was recorded that it was given an oral zarpeshgi. The following was noted “Wazarie Jabani Zarpesgi”. According to the plaintiffs as they owe Rs. 150/- to defendants, the land in question was given in Zarpesgi orally to them. According to the defendants the land in question was orally sold to the defendants but by mistake Zarpesgi was written. 4. The court below disbelieved the case of the defendants about purchase by them orally. 5. This finding was not challenged on their behalf. In this appeal it was contended that the respondents filed the suit for redemption relying on the factum of oral Zarpeshgi, which was recorded as Ext. 1 as noticed above. According to the appellants as the value sought to be secured was Rs. 150/- the mortgage could have been done only by a registered instrument as provided in section 59 of the Transfer of Property Act; but as it was oral suit for redemption was not maintainable. 6. 1 as noticed above. According to the appellants as the value sought to be secured was Rs. 150/- the mortgage could have been done only by a registered instrument as provided in section 59 of the Transfer of Property Act; but as it was oral suit for redemption was not maintainable. 6. On behalf of the respondents it was contended that since the reference of the Zarpesgi has been made in a registered instrument it could not be held that the Zarpesgi was oral and the suit for redemption was not maintainable. According to the learned counsel even oral Zarpesgi can be redeemed. In support of this proposition, reliance was placed in the case of Rupa Nonia v Ram Brich Pathak & ors (A.I.R. 1959. Patna 164). On behalf of the appellants it was contended that in view of the decision of the case of Kolathoor Variath & another v. Pairaprakottoth Cheriya Kumhahammmad Haji (A.I.R. 1974, Supreme Court. 639) the law laid down in Rupa Nonia cannot be said to be a good law. 7. In Rupa Nonia v. Ram Brich Pathak & ors it was held that where a person enters possession of immovable property not on the assertion of any absolute title but on the basis of an unregistered rehan bond in his favour and remains in possession for more than twelve years, he acquires the status of a mortgagee by the doctrine of prescription and so even though the rehan bond is not a valid transaction for want of registration, the mortgagor is entitled to redeem the property. From the facts of the Supreme Court case it appears that suit was filed for recovery of possession not only on the basis of an unregistered oral mortgage but the claim was founded on title also. The Supreme Court observed that where a plaintiff cannot regain possession on the basis of an oral mortage as it cannot be proved in court of law for want of registration, it is open to hi m to recover possession on the basis of his title. According to the learned counsel of the respondents the Supreme Court did not clearly lay down that suit for redemption based on oral mortgage was not maintainable. In my opinion the observation of Supreme Court is clear when it held that mortgage cannot be proved in court of law for want of registration. According to the learned counsel of the respondents the Supreme Court did not clearly lay down that suit for redemption based on oral mortgage was not maintainable. In my opinion the observation of Supreme Court is clear when it held that mortgage cannot be proved in court of law for want of registration. In view of the decision of the case of Kolathoor Variath and another v. Pairaparkottoth Cheriya Kumhahammmad Haji the decision of this Court on the point that the suit for redemption is maintainable on the basis of an oral mortage cannot be said to be a good law. The court below, therefore, was not correct in law in holding that the suit for redemption on the basis of the remark in Ext. 1 against plot no. 718 was maintainable. That answers substantial question of law formulated. 8. I have already noticed that the court below has disbelieved the case of the appellant about oral purchase. The appellants cannot be allowed to take advantage of the absence of a registered instrument to defeat the respondent title if any. The respondents can succeed to recover possession if they can prove their title to the property. 9. From the recitals in the plaint there are some recitals with regard to the title of the respondents. Admittedly no alternative relief was prayed for on the basis of their title. Instead of directing the respondents to file another suit for recovery of possession on the basis of the title it is just and equitable that for the reasons aforesaid an opportunity be given to respondents to amend the plaint by allowing them to insert the facts on the question of title. It is necessary that the matter should be sent back to the trial court. 10. The appeal is allowed. The judgment and decree of the lower appellate court is set aside and the case is sent back to the trial court. It will give an opportunity to the plaintiffs to amend the plaints. If the plaint is amended, the appellants defendants will be given an opportunity to file additional written statement. If the parties pray the court below shall given them opportunity to lead evidence on the question of title alone. It shall flame an issue on title. It will give an opportunity to the plaintiffs to amend the plaints. If the plaint is amended, the appellants defendants will be given an opportunity to file additional written statement. If the parties pray the court below shall given them opportunity to lead evidence on the question of title alone. It shall flame an issue on title. In view of the fact that the matter is being remitted the operative part of the judgment and decree of trial court are set aside. The findings are confirmed. The trial court shall, on the basis of the materials on record and materials that may be brought on record to the parties record its finding on title and dispose of the suit.