Judgment S. Roy J. 1. The defendants are the appellants. The respondent filed the suit for redemption of the suit property said to have been given on usufractuary mortgage by them to the appellants orally for securing R. S.150. The trial court held that as the Zarpeshgi was given orally and not by a registered instrument no decree for redemption could be passed. The lower appellate court held that although Zarpesbgi 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 passed was question no (i) framed on 26-4-1988 namely : whether the appellate court is right in setting aside the decree of the trial court basing its decision on an oral Zarpeshgi deed ? it is, therefore, not necessary to go into the facts in detail the case for disposing of this appeal. 3. Admittedly, some joint family properties were partioned between the parties and two schedules were prepared the land in schedule one was allotted to the share of the plaintiffs schedule and the land in schedule two was allotted to the share of the defendants. The parties executed and registered a 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 zarpeshgi". According to the plaintiffs at they are Rs.150 to the defendants, the land in question was given in Zarpeshgi orally to them. According to the defendants the land in question was orally sold to the defendants but by mistake zarpeshgi was written. 4. The court below disbelieved the case of the defendants about purchase by them orally. 5. This finding was not challanged 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 an 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 Sec.59 of the Transfer of Property Act; but as it was oral suit for redemption was not maintainable. 6. 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 Sec.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 Zarpeshgi has been made in a registered instrument it could not be held that the Zarpeshgi was oral and the suit for redemption was not maintainable. According to the learned counsel even oral Zarpeshgi can be redeemed. In support of this proposition, reliance was placed in the case of Rupa Aonia V/s. Ram brich Pathak and others, AIR 19:9, Patna 164. On behalf of the appellants it was contended that in view of the decision of the case of Kolathoor Variath and another V/s. Pairaprakottoth Cheriya Kumhahammad Haji, AIR 1974 SC 689 the law laid down in Rupa Nonia cannot be said to be a good law. 7. In Rupa Nonia V/s. Ram Brich Pathak and others, (supra) it was held that where a person enters possession of immovable property not on the assertion of any absolute title but on the bas;s 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 remain possession on the basis of an oral mortgage as it cannot be proved in court of law for want of registration, it is open to him 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 may opinion, the observation of the Supreme Court is clear when it held that mortgage cannot be proved in a 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 may opinion, the observation of the Supreme Court is clear when it held that mortgage cannot be proved in a court of law for want of registration. In view of the decision of the case of Kolathoor Variath and another V/s. Pairaprakottoh Cheriya Kumha-hammad Haji, the decision of this Court on the point that a suit for redemption is maintainable on the basis of an oral mortgage 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.781 was main-tainable. That answers substantial question of law formulated. 8. I have already noticed that the court below has disbelieved the case of the appellants about oral purchase. The appellants cannot be allowed to take advantage of the absence of a registered instrument to defeat the respondents 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 of the basis of title, it is just and equitable that for the reasons aforesaid an opportunity be given to the 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 appel-late 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 plaint. If the plaint is amended, the appellants defendants will be given an opportunity to file additional written state-ment. If the parties pray the court below shall given them opportunity to lead evidence on the question of title alone. It shall frame an issue on title. It will give an opportunity to the plaintiffs to amend the plaint. If the plaint is amended, the appellants defendants will be given an opportunity to file additional written state-ment. If the parties pray the court below shall given them opportunity to lead evidence on the question of title alone. It shall frame an issue on title. In view of the fact that the matter is being remitted the operative part of the judgment and decree of the trial court aie 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 by the parties record its finding on title and dispose of the suit.