Md. Yakub Ansari v. Md. Yasin Ansari — 1998 DIGILAW 523 (PAT)

Judgment G.S.Chaube, J. 1. This appeal is directed against the judgment and decree dated 30.8.87/14.9.87 passed by the learned third Subordinate Judge, Palamau at Daltonganj, in Title Suit No. 36 of 1985. By the impugned judgment and decree, the suit filed by the appellant was dismissed, but without cost. 2. The case of the plaintiff appellant is that in the year 1968, he fell in need of an amount of Rs. 4,000/- (rupees four thousand) in connection with his business. Therefore, he approached the defendant-respondent for loan of that amount on the security of about 9.3 acres of land belonging to him, situate at the village Munkeri. However, the defendant- respondent gave out that as he was not a money-lender having money lending licence, he could not advance him the loan on the basis of a mortgage deed. He, however, offered to purchase the said land with an agreement to re-convey the same on an express assurance that the transaction would be treated usufructuary mortgage. Having been so assured by the defendant respondent, the plaintiff-appellant executed a registered sale deed respecting the said lands which are mentioned in Schedule-A to the plaint (hereinafter to be referred to as the suit lands) in favour of the defendant respondent on 16.11.1968 being the deed No. 9722 of the even date. Accordingly, the defendant respondent also executed a registered agreement in favour of the appellant undertaking to re-convey the suit lands to him. As the transaction was intended to be an usufructuary mortgage, he put the defendant-respondent in possession of the suit lands after receiving the entire consideration money. The latter remained in possession for about seven years. However, he took possession of the suit lands in December, 75 in view of the fact that by virtue of the provisions of section 12 of the Bihar Money Lenders Act, 1974, the usufructuary mortgage stood redeemed on the expiry of a period of seven years of the cultivating possession of the defendant respondent. The latter did not object to his taking possession of the suit lands. However, after about four years, he started disturbing and disputing his possession over the suit lands on the instigation of one Abdul Rahman Ansari who happened to be the own uncle of the plaintiff appellant and full brother of one Usman Ansari whose son is married to the daughter of the defendant respondent. However, after about four years, he started disturbing and disputing his possession over the suit lands on the instigation of one Abdul Rahman Ansari who happened to be the own uncle of the plaintiff appellant and full brother of one Usman Ansari whose son is married to the daughter of the defendant respondent. Consequently, the dispute was referred to private panchayat who after hearing both the parties, made an award in favour of the plaintiff-appellant holding that the transaction of the year 1968 was actually a usufructuary mortgage and not sale, as evidenced by the sale deed executed by the plaintiff-appellant and agreement of reconveyance executed by the defendant respondent. Since the defendant-respondent failed to abide by the award of the punches and instead tried to dispossess him from the suit lands on 29.9.1980 with the help of some musclemen, a suit was filed before the Munsif, Palamau at Daltonganj. However, subsequently, the value of the suit was fixed at Rs. 1,00,000/- (rupees lakh) for the purposes of the jurisdiction and the court fee. The plaint was taken back and presented before the Subordinate Judge with the relief of declaration that the sale deed no. 9722 dated 16.11.1968 executed by the defendant in favour of the plaintiff was due to fraudulent inducement of the defendant-respondent and the same was really a usufructuary mortgage deed and the mortgage stood redeemed on account of the possession by the respondent till November, 1975. The plaintiff appellant sought further relief in the court below of a declaration that the suit land continued to be his occupancy raiyati lands and that the defendant respondent has no right, title and possession over the same. 3. The defendant-respondent appeared and contested the suit by filing his written statement contending, inter alia, that whatever the plaintiff appellant has asserted in the plaint is not correct. As a matter of fact, the plaintiff-appellant approached him with an offer to sell the suit lands and on negotiation, the price was fixed at Rs. 4,000/- (rupees four thousand) only in view of the prevalent market price of the lands in the locality and by way of good gesture, he agreed to re- convey the suit lands if the plaintiff-appellant exercised his option in this respect till 16.11.1973. As the plaintiff- appellant agreed, he executed the registered deed in question respecting the suit lands in his favour on 16.11.1968. As the plaintiff- appellant agreed, he executed the registered deed in question respecting the suit lands in his favour on 16.11.1968. On his part, he executed, on the same day an agreement in favour of the plaintiff appellant to reconvey the suit lands if the latter offered to re-purchase the same till 16.11.1973. After execution of both the documents, the plaintiff received the entire consideration money and put him in possnssion over the suit land. His further case is that since then, he is in possession over the suit lands and is continuing to cultivate the same. He never agreed that the transaction shall be treated as an usufructuary mortgage as contended by the appellant, nor the latter came in possession of the suit lands in December, 1975 due to deemed redemption of the alleged mortgage by virtue of his cultivating possession of seven years in terms of section 12 of the Bihar Money Lenders Act. As a matter of fact, he got his name mutated respecting the suit lands. Those lands were later on auctioned in a certificate proceeding for realisation of certain dues, which the appellant owned to a co-operative society. In course of the said auction, one Abdul Gafar Ansari purchased those lands and applied for mutation in his favour. On his objection to the application of the said Abdul Gafar Ansari, the revenue authority declined to mutate the name of the latter respecting the suit lands. Thereafter, he also applied before the certificate officer for cancelling the sale in favour of the said Abdul Gafar Ansari, but failed to obtain any favourable order. Consequently, he preferred an appeal before the Additional Collector and after hearing the parties, the Addl. Collector allowed the appeal and cancelled the sale of the suit lands in favour of the auction purchaser Abdul Gafar Ansari. The defendant-respondent also contested the case of the plaintiff-appellant that the dispute was referred to any private panchayat and the panches had adjudicated upon the dispute and submitted an award or panch faisla as described by the plaintiff-appellant. On these grounds, the defendant submitted that the suit was fit to be dismissed. 4. On the respective pleadings of the parties, learned third Subordinate Judge, Palamau before whom the suit came up for hearing, framed five issues including issue no. 3 and 4 to the following effect: "3. On these grounds, the defendant submitted that the suit was fit to be dismissed. 4. On the respective pleadings of the parties, learned third Subordinate Judge, Palamau before whom the suit came up for hearing, framed five issues including issue no. 3 and 4 to the following effect: "3. Was the transaction between the parties a usufructuary mortgage or out and out sale with an agreement to re-conveyance or re-purchase? 4. Is the plaintiff entitled to the declaration of his title and possession over the suit land?" 5. On the evidence led by the parties, the learned Subordinate Judge came to the finding that there is no satisfactory and reliable evidence by the plaintiff appellant that the intention of the parties was that the transaction shall be treated as usufructuary mortgage and that the oral evidence that the transaction was intended or agreed upon to be treated as usufructuary mortgage is impermissible and the intention of the parties was to be gathered from the language of the document itself. On the evidence led, the learned Subordinate Judge also found that there was no element of fraud or inducement in getting the document executed by the plaintiff appellant who was found to be not in possession of the suit lands contrary to his assertion. Therefore, on the evidence, the learned Subordinate Judge held that the document executed by the plaintiff-appellant in favour of the defendant-respondent was out and out a sale deed coupled with a contemporaneous agreement to reconvey the same property to the plaintiff appellant. Regarding reference of the dispute between the parties, to private panchayat and the panch faisla rendered on the basis thereof, the learned Subordinate Judge said nothing regarding the document of the panchayat whereby and whereunder the dispute purported to be referred to the panchayat. However, he held that the panch failsa being an award respecting a transaction worth Rs. 6500/- was compulsohly registrable under section 17 of the Registration Act and the same having not been so registered, was not admissible in evidence; and that since the document was brought in existence in the year 1980, i.e., much after the transaction between the parties, and was never acted upon, it can not be looked into as evidence. On such findings, the learned subordinate Judge dismissed the suit of the plaintiff. Hence, the appeal. 6. Mr. On such findings, the learned subordinate Judge dismissed the suit of the plaintiff. Hence, the appeal. 6. Mr. K.K. Habib, learned counsel for the appellant, submitted that the approach of the learned trial court in deciding issues no.3 and 4 is erroneous. It has wrongly held that no evidence respecting the intention of the parties was admissible and the plaintiff appellant was not in possession of the suit lands since December, 1975 as contended by him. His observation that the witness of the plaintiff himself has admitted this position is an error of record. Learned counsel further submitted that the trial court committed an error in holding that the decision of the Apex Court reported in AIR 1982 SC 20 is not applicable to the present case while declining to look into the panch faisla. He contended that the intention of the parties to a particular transaction has to be gathered from the language of the document itself as well as the conduct of the parties and other facts and circumstances. 7. On the other hand, Mr. N.K. Prasad, learned senior counsel for the respondent submitted that the intention of the parties has to be gathered from the document itself and only in case there is some ambiguity or vagueness that oral evidence to explain the same is permissible. He further submitted that section 92 of the Evidence Act is a complete bar to adducing oral evidence to vary, contradict, add to, or substract from, the terms incorporated in a document. In support of his contention, he has placed reliance on a decision of this Court reported in 1995(2) All P.L.R. 578. He further contended that there are documentary evidences, besides the sale deed dated 16.11.1968 and the agreement for reconveyance of the same date, for concluding that the transaction was out and out a sale, of course, with a contemporaneous agreement to resell the same to the plaintiff- appellant within the specific period of five years expiring on 16.11.1973. 8. He further contended that there are documentary evidences, besides the sale deed dated 16.11.1968 and the agreement for reconveyance of the same date, for concluding that the transaction was out and out a sale, of course, with a contemporaneous agreement to resell the same to the plaintiff- appellant within the specific period of five years expiring on 16.11.1973. 8. Therefore, the main point for consideration in the present appeal is whether the transaction entered into between the parties on 16.11.1968 respecting the suit lands was out and out a sale with agreement to reconvey within the specified period of five years expiring on 16.11.1973; or it was a usufructuary mortgage, which came to be redeemed due to continuous cultivating possession of the defendant-respondent over the suit lands for a period of seven years in view of the provisions of section 12 of the Bihar Money Lenders Act, 1974. 9. Before entering into the discussion regarding the merit of the appeal, it appears necessary to mention that all the documents, except Ext. 4, admitted on behalf of the plaintiff in the trial court were withdrawn on his behalf on 24.12.1990. They were not refiled even after the filing of this appeal by him. However, in course of hearing of this appeal, those documents were re-filed by his counsel for perusal. 10. The case of the plaintiff-appellant is that he fell in need of Rs. 4000/- (rupees four thousand) and approached the defendant-respondent for advancing the said amount by way of loan on his executing a usufructuary mortgage in his favour. However, the defendant-respondent told that it was not possible for him to oblige in the way suggested, because he was having no money lending licence and did not intend to obtain one. However, the latter suggested for execution of a sale deed in his favour by the plaintiff- appellant agreeing to execute a contemporaneous agreement to reconvey the property. Nonetheless, the defendant- respondent had assured him that the transaction shall be treated as a usufructuary mortgage. It was on this assurance that he executed the sale deed dated 16.11.1968 in favour of the defendant- respondent and the latter executed an agreement to resell the property to him. The sale deed in question is brought on record as Ext. D; and the agreement of reconveyance is Ext. It was on this assurance that he executed the sale deed dated 16.11.1968 in favour of the defendant- respondent and the latter executed an agreement to resell the property to him. The sale deed in question is brought on record as Ext. D; and the agreement of reconveyance is Ext. E. Ext.D. unequivocally declares that the plaintiff-appellant executed deed of sale respecting the suit lands in furtherance of his intention to do so. Likewise, Ext. E. discloses that on the same day, defendant-respondent agreed to resell the same property to the plaintiff on the latter showing his readiness and willingness to get back the property on returning of the money by 16.11.1973. The terms of both the documents are quite unambiguous leaving no scope for inferring otherwise. 11. Law is well settled that when the terms of any transaction have been reduced to the form of a document, those terms must be proved by production of the document itself. This is what section 91 of the Evidence Act mandates. As a corollary to this rule, section 92 of the Evidence Act provides that when terms of any such contract, grant or other disposition of property has been proved by production of the document itself, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument, or their representatives in interest, for the purpose of contracting, varying, adding to, or substracting from, the terms thereof. The same rule has been reiterated by a Bench of this court in the case of Bijay Ghosh @ Bijay Kumar Ghosh V/s. Syed Jayauddin Asraf: 1995(2) All P.L.R. 578. However, Mr. Habib, learned counsel for the appellant has tried to convince that the case of the plaintiff-appellant is covered by second and third provisos to section 92 of the Evidence Act. In his pleading the plaintiff-appellant had sought avoidance of the sale deed dated 16.11,1968 executed by him in favour of the defendant-respondent on the ground that it was an outcome of fraudulent inducement by the defendant; and actually, the transaction was intended to be a usufructuary mortgage. In his pleading the plaintiff-appellant had sought avoidance of the sale deed dated 16.11,1968 executed by him in favour of the defendant-respondent on the ground that it was an outcome of fraudulent inducement by the defendant; and actually, the transaction was intended to be a usufructuary mortgage. In support of this contention, he adduced the evidence to the effect that the parties had gone to Daltonganj for execution of usufructuary mortgage deed as agreed upon between them earlier; but when it came for execution of the document the defendant respondent disclosed that since he had no money lending licence and he did not intend to obtain one, it was not possible for him to advance the money on execution of mortgage deed and on his assurance that the transaction shall be treated as a usufructuary mortgage Exts. D and E were executed. The evidence of D.W. 2 who is none else than the uncle of the plaintiff-appellant is also to the same effect. According to him, at village Muneri itself near the house of Usman the parties had agreed for execution of the mortgage deed. At that time, besides the same Usman, he was also present. Nowhere in his evidence the plaintiff who has been examined as P.W. 6 in the trial court, has whispered that the agreement for executing mortgage deed had been arrived at between him and the defendant respondent in presence of any other person, much less P.W. 2. Similarly P.W. 7, the scribe of Daltonganj, has stated that in his presence, Exts. D and E were scribed and got executed at Daltonganj. Even though he did not take any part in the preparation, execution, or registration of those documents, he overheard the plaintiff-appellant protesting to the defendant-respondent that when they had earlier agreed for executing a mortgage deed, why a sale deed was being got executed? Only one statement of P.W. 6 made in course of his cross-examination is sufficient to discredit P.W. 7. In para 25 of his evidence, P.W. 6 has stated that he had gone to Daltonganj for the purpose of executing a registered sale deed in favour of the defendant. Therefore, there was no question of the defendant respondent turning a volte-face at the registration office at the time of execution of the document as agreed upon between them earlier. In para 25 of his evidence, P.W. 6 has stated that he had gone to Daltonganj for the purpose of executing a registered sale deed in favour of the defendant. Therefore, there was no question of the defendant respondent turning a volte-face at the registration office at the time of execution of the document as agreed upon between them earlier. Even what the plaintiff and his witnesses have stated is taken to be true, the transaction can hardly be described as an outcome of fraud to prove which alone extraneous evidence can be permissible in terms of first proviso to section 92 of the Act. Learned counsel for the appellant fairly conceded that the case of the plaintiff-appellant is not covered by the said proviso. However, he has contended that the second and third provisos to section 92 of the Act do come to his rescue. 12. Proviso (2) to section 92 lays down that the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document. Proviso (3) says that the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Mr. Prasad, learned counsel for the respondent has rightly pointed out that the exceptions as contained in the two provisos referred to above, are not applicable to the present case. The terms as contained in Exts. D and E are quite explicit and loud that a document of sale with contemporaneous agreement for re-sale had been executed. Therefore, the second proviso to section 92 does not come in play. Likewise, the existence of no separate oral agreement constituting a condition precedent to the attaching of any obligation under the sale deed in question has been proved; if any thing, it was only the one evidenced by Ext. E. This proviso permits proof of only separate oral agreement as a condition precedent to the attaching of any obligation to it; but any attempt to show that the written agreement is not what purported to be, but something different is opposed to the purport of this proviso. E. This proviso permits proof of only separate oral agreement as a condition precedent to the attaching of any obligation to it; but any attempt to show that the written agreement is not what purported to be, but something different is opposed to the purport of this proviso. Therefore, manifestly, no oral or any extrinsic evidence is permissible in the instant case in terms of the second and third provisos to section 92 of the Evidence Act as contended by the learned counsel for the appellant. 13. However, placing reliance on a decision of the Apex Court in the case of Smt. Ganga Bai V/s. Smt. Chhabu Bai ( AIR 1982 SC 20 ), the learned counsel his submitted that extrinsic evidence to prove that the document proved does not purport to be what its terms disclose, but is a sham one is permissible attacked. In this case the facts were that the plaintiff executed a deed of sale in favour of the defendant as she needed some money for repairing some house property in question and simultaneously a rent note was also brought into existence in her favour. She remained in possession of the house property, carried on repairs from time to time. When the transferee defendant started suing her obtaining decrees for arrears of rent, she instituted the suit for declaration that the transaction was a sham one, -never intended to be acted upon,- and she had simply obtained a loan and the rent agreed to be paid by her was equivalent to the interest on the principal sum @ 18% per annum. The trial court decreed the suit holding that the transaction which purported to be a sale was never acted upon. In appeal the first appellate court held that the transaction was actually a mortgage. On further appeal to the High Court of Bombay, it was held that the finding of the trial court that the sale deed and the rent note were sham documents was correct. When the matter went to the Apex Court, it was held that the bar imposed by section 92 applies only to a party seeking to rely upon a document embodying the terms of the transaction. When the matter went to the Apex Court, it was held that the bar imposed by section 92 applies only to a party seeking to rely upon a document embodying the terms of the transaction. In that evident, law declares that the nature and intent of transaction must be gathered from the terms of the document and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contracting or modifying its terms. The Apex Court has further held that the section is not attracted when the case of a party is that "the transaction recorded in the document was never intended to be acted upon at all between the parties and that document is sham. Such a question arises when a party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose, the oral evidence is admissible to show that the document executed was never intended to operate as an agreement, but that some other agreement altogether, not recorded in the document, was entered into between the parties." 14. Indeed, the plaintiff was ill-advised to seek the first relief to bring the case under the first proviso to section 92 of the Evidence Act when he presented the plaint before the Subordinate Judge after its return from the court of the Munsif. Nowhere fraud was pleaded in the body of the plaint except that he fell an easy prey to the inducement held out by the defendant that the transaction shall be treated as a usufructuary mortgage. However, when one goes through the entire pleading of the plaintiff, it emerges therefrom that in essence the case of the plaintiff is that even though a document of safe had been executed coupled with a contemporaneous document incorporating an agreement to reconvey the property, the transaction was usufructuary mortgage. In other words, the case of the plaintiff is that the documents of 16.11.1968 are sham ones and were never intended to be acted upon. In fact, they were not acted upon inasmuch as after expiry of period of seven years, he took possession of the suit lands without any semblance of resistance from the defendant. In other words, the case of the plaintiff is that the documents of 16.11.1968 are sham ones and were never intended to be acted upon. In fact, they were not acted upon inasmuch as after expiry of period of seven years, he took possession of the suit lands without any semblance of resistance from the defendant. Therefore, in view of the decision of the Apex Court in the case of Gangabai vs. Smt. Chhabibai (supra), there can be no bar to the plaintiff adducing extraneous evidence to show that the transaction impugned was only a usufructuary mortgage and not a sale with contemporaneous agreement for resale. 15. To bring home his case that the transaction was a usufructuary mortgage and not sale as disclosed by Ext. D the plaintiff appellant has led evidence to show that actually there was an agreement for executing mortgage prior to the actual execution of Exts. D and E; that he took possession after the expiry of a period of seven years of continuous possession of the defendant; and that when dispute between the parties came for adjudication by panchayat in terms of the arbitration agreement, the defendant admitted before the panches that the transaction was actually a usufructuary mortgage and not sale. 16. I have already indicated hereinbefore that the evidence led by the plaintiff that prior to execution of Exts. D and E on 16.11.1968, both the parties had agreed for execution of a mortgage deed, but due to some technical reasons Exts. D and E were brougt into existence is not reliable and acceptable. As regards low price paid to the plaintiff as a ground for interring that the transaction was a mortgage and not sale there is preponderance of evidence on record that the price mentioned in the document and paid to the plaintiff-appellant was commensurate to the prevailing market price of land in the locality. Not a whit of evidence is available from the side of the plaintiff that the market value of the suit lands was to the extent of Rs. 1,00,000/- at that time. Incidentally, at the time of hearing learned counsel for the plaintiff appellant did not press the ground of low consideration as a circumstance for inferring that the transaction was in fact, mortgage and not sale. 17. 1,00,000/- at that time. Incidentally, at the time of hearing learned counsel for the plaintiff appellant did not press the ground of low consideration as a circumstance for inferring that the transaction was in fact, mortgage and not sale. 17. The evidence adduced by the plaintiff in the trial court to prove that he came in possession of the suit lands in December, 1975 just after the expiry of seven years in view of the enactment of the Bihar Money Lenders Act, 1974 and still continues in possession thereof is no better. P.W. 1 has stated that the plaintiff is in possession of the suit lands for the past 16/18 years and then stated that he is in possession for the last 15/16 years. The witness was deposing in November 1986. Therefore, if what he has stated to be accepted as correct, the plaintiff is in cultivating possession of the suit lands since 1970 or so, which is nobodys case. When the witness was cross-examined, at first he stated that he had seen the father of the defendant cultivating suit lands in 1968 and never thereafter. However, he faltered to say that he had seen him in cultivating possession even thereafter. P.W. 2 who is uncle of the plaintiff has not even whispered on the point that the plaintiff ever came in possession of the suit lands. P.W. 4 who was aged about 40 years when in the witness box in the month of June, 1987, has stated that the suit lands are in possession of the plaintiff for the last twelve years and earlier the defendant was in possession for seven years. According to him, the defendant had no concern with the suit lands at the time he was deposing. However, when put to cross-examination by the defendant, the witness stated that he had been witnessing the plaintiff cultivating the suit lands since he attained the age of discretion (hosh), but failed to state at what age; ultimately, he succumbed to admit that the plaintiff has no concern with the suit lands. It appears it is from this statement of P.W. 4 that the trial court has inferred that the plaintiff is not in possession. 18. P.W. 5 is admittedly a resident of another village having his land at a distance of 1/2 mile from the suit land. It appears it is from this statement of P.W. 4 that the trial court has inferred that the plaintiff is not in possession. 18. P.W. 5 is admittedly a resident of another village having his land at a distance of 1/2 mile from the suit land. At first he stated that he knew nothing about the suit lands and then proceeded to say that earlier the same were under cultivation of the defendant for seven years and now the plaintiff is in possession. True to his earlier statement that he knew nothing about the suit lands, when put to cross examination, he failed to disclose even the boundaries and area thereof, what of plot and khata numbers. 19. On the other hand, the witnesses examined by the defendant have stated that he is in possession over the suit lands right from the time the transaction between the parties took place. D.W. 2 has stated that he is a labourer of the defendant. Therefore he is a competent witness to prove the factum of possession. D.W. 5 is none else than the son-inlaw of the defendant and resident of the same village. He has stated that he looks after the cultivation of the suit lands on behalf of the defendant. Even prior to his marriage in 1976 with the daughter of the defendant, the suit lands used to be looked after for the purpose of cultivating, by his family as younger brother of the defendant was married to his aunt. D.W. 8 who is also a resident of the same village, has stated that the defendant is in possession for the past 18-19 years and this dispute between the parties cropped up about 11-12 years back. He also claimed to have worked on the suit lands for the defendant. 20. D.W. 9, likewise, says that the defendant is in possession and she had occasion to work on those hands on behalf of the defendant in course of transplantation and harvesting of paddy crops and weeding of other crops. Corroborating the testimony of D.W. 5, she stated that the suit lands are tilled with the help of bullocks and plough of that witness, and at times bullocks and plough etc. of others are hired. D.W. 10 is defendant himself and he stated that he still continues to be in possession. Corroborating the testimony of D.W. 5, she stated that the suit lands are tilled with the help of bullocks and plough of that witness, and at times bullocks and plough etc. of others are hired. D.W. 10 is defendant himself and he stated that he still continues to be in possession. Therefore, the evidence adduced by the defendant respecting possession over the suit lands is far superior to the evidence adduced by the plaintiff. Even in the panch faisla (Ext.2), which I shall deal hereinafter, is silent on the point that the plaintiff was in possession of the property in question. 21. The plaintiff has also brought on record certified copy of the judgment rendered on 19.5.1982 in case No. 1426/79. The document has been admitted as Ext.5. Learned counsel for the appellant has contended that this document shows that the plaintiff was in possession at least, in 1979 when the case was instituted, and he and three others were charged for commission of offences under section 379 read with section 34 I.P.C. The case of the first informant was that at about 8.00 A.M. on 28.11.1979, the accused persons therein had forcibly harvested his paddy crop worth Rs. 400/-. The case of the defence, however, was that the crop had been grown by the accused persons themselves after coming into possession over the disputed land in the year 1975. After conclusion of the trial, all the accused persons stood acquitted of the charges. Law is that the judgment of a criminal trial is admissible only to the extent as to what was the case of the respective parties and what was the result of the trial or inquiry. Reasons assigned by the criminal court for arriving at a conclusion are not admissible. Therefore, Ext. 5 in no way helps the appellant in proving his possession over the suit lands. 22. Even if it is assumed for the sake of argument, without admitting the case of the plaintiff appellant, that he is in possession of the suit land, by no stretch of imagination, this fact alone will go to prove that the transaction impugned was actually a usufructuary mortgage and not sale. 22. Even if it is assumed for the sake of argument, without admitting the case of the plaintiff appellant, that he is in possession of the suit land, by no stretch of imagination, this fact alone will go to prove that the transaction impugned was actually a usufructuary mortgage and not sale. Learned counsel for the appellant contended that the conduct of the plaintiff in putting the defendant in possession over the subject matter of the transaction and subsequently taking back possession after expiry of seven years will go to show that the transaction was intended to be a usufructuary mortgage and not sale. I do not find any substance in this contention. The fact that the plaintiff put the defendant in possession over the transferred lands cannot enure for arriving at the conclusion that the transaction was mortgage, because even in a transaction of sale, the vendor is obliged to put the vendee in possession of the property transferred. Similarly, the fact that the plaintiff resumed possession of the suit lands allegedly in December, 1975, even if taken to be true, by itself is not a circumstance to show that the transaction was mortgage for the simple reason that apart from the fact that the defendant has contested this claim of possession; what the plaintiff has asserted in his pleadings is that he took possession of the suit lands and the defendant did not object to his taking back possession in deference to the real intention of the understanding between them that the transaction shall be treated to be a mortgage and not that the defendant put him in possession in deference to the oral agreement or understanding. Had the case of the plaintiff been that in deference to the prior oral agreement or understanding that the transaction shall be treated as usufructuary mortgage, the defendant put him back in possession of the transferred lands, the matter would have been different. His case is that he took possession of the suit lands. The evidence discloses that an attempt on the part of the plaintiff to take back possession was resisted by the defendant, so much so that a criminal case was instituted against him and his supporters way back in 1979 (as per Ext. 5). The suit lands were situated at the village of the plaintiff himself, whereas the defendant is a resident of the town of Daltonganj. 5). The suit lands were situated at the village of the plaintiff himself, whereas the defendant is a resident of the town of Daltonganj. Therefore, any attempt on the part of the plaintiff to regain possession of the suit lands either forcibly or surreptitiously and continuing in such possession shall be no circumstance that the transaction was actually intended to be mortgage. 23. An attempt has also been made by the plaintiff to show that when dispute between the parties respecting the suit lands arose, the matter was referred to the private panchayat consisting of some panches of their choice by executing a document, and after hearing the parties and deliberating on facts and circumstances stated before them, the panches made a panch faisla or award to resolve the dispute. Ext.1 is the agreement between the parties for referring the dispute to the panches and Ext-2 is the award or the panch faisla. Both the documents purport to have been brought into existence on 25.6.1980. Initially, the defendant disputed the allegation the dispute was referred to the panches by executing Ext.1 and that the panches made an award. However, in course of his cross- examination, he admitted his signature on Ext.1. His signature is Ext.4/1 as also Ext. A. Attempt was made to show that the signature of the defendant was obtained by one Chandrika Prasad Yadav, one of the panches for some other purpose, and the same was converted into an arbitration agreement. The defendant has, however, failed to establish it. Therefore, once it is found that the defendant was a signatory to the agreement for referring the dispute to the panchayat (Ext.1) the genuineness of this document cannot be disputed. However, there is some difficulty for the plaintiff in gaining any mileage on the basis of the panch faisla or award (Ext.2). The trial court has declined to look into this document on two grounds; first that it was brought into existence much after the transaction between the parties; and secondly, that it was not registered in accordance with the provisions of section 17 of the Registration Act. Learned counsel for the respondent has also submitted that this document cannot enure for the benefit of the plaintiff as it has not been made rule of the court in accordance with the provisions of the Arbitration Act, 1940 . Learned counsel for the respondent has also submitted that this document cannot enure for the benefit of the plaintiff as it has not been made rule of the court in accordance with the provisions of the Arbitration Act, 1940 . Clause (b) of sub- section (1) of section 17 of the Registration Act provides that non-testamentary instrument which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property, shall have to be registered. However, sub-section (2) thereof provides that nothing in clauses (b) and (c) of sub-section (1) applies to, inter alia : "(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will when executed, create, declare, assign, limit or extinguish any such right, title or interest." 24. On going through Ext.2, I find that this document which purports to be an award of the panches made on 25.6.1980 does not create or declare any title in favour of the plaintiff or limit or extinguish that of the defendant. What the award purports to say is that the panches decided to direct the defendant (transferee) on the basis of the sale deed dated 16.11.1968 (bearing deed no. 9722) to reconvey the property to the plaintiff by executing a registered sale deed after receiving a sum of Rs. 6500/- (rupees six thousand and five hundred) from the plaintiff. The latter was also given liberty to obtain such document on payment of the money aforesaid and resume possession, and if the defendant declined to abide by the decision, to deposit the money in court and resume possession of the lands in question and get his name mutated respecting the same. Obviously, the document falls within the fifth exception to the general rule incorporated in sub-section (2) of section 17 of the Registration Act. Since the award itself did not purport or operate to create, declare, assign, limit or extinguish any right, title or interest respecting an immovable property, it was not compulsorily registrable so as to invite the rigor of section 49 of the said Act. 25. Since the award itself did not purport or operate to create, declare, assign, limit or extinguish any right, title or interest respecting an immovable property, it was not compulsorily registrable so as to invite the rigor of section 49 of the said Act. 25. Likewise, there appears to be no substance in the contention of the learned counsel for the respondent that since the award was not made rule of the court as required under the Arbitration Act, 1940 , it is not binding on any of the parties and it cannot be looked into for the purpose of the present proceeding. On similar facts, when the matter was referred to the arbitration and its award not made rule of the court and subsequent suit filed respecting the same dispute, relying on an earlier unreported judgment in the case of M/s. Uttam Singh Dugal and Company vs. Union of India in Civil Appeal No. 162 of 1962 dated 11.10.1962 (SC) the Apex Court in the case of Satish Kumar & Ors. V/s. Surender Kumar & Ors. ( AIR 1970 SC 833 ) held that an award has some legal force and is not a mere waste paper. Relying on the said decision of the Apex Court a Division Bench of this Court, has held in the case of Gauri Shankar Prasad Sinha V/s. the State of Bihar (1973 PLJR 65 : AIR 1973 Patna 405) that even though the award is not made a rule of the court, in view of paragraph 7 of Schedule I to the Arbitration Act, the award is binding on both the parties and cannot be treated of no consequence. Such award is clothed with all the elements of vitality and may be relied upon in a litigation between the parties relating to the same subject matter. The Bench has observed as under : "From the above quoted observations, it would appear that the Act has not brought about any change in the law which existed before its passing in the year 1940 and that a valid award operates to extinguish all claims which were the subject matter of the reference to arbitration and the award alone furnishes the basis by which the rights of the parties can be determined and any action on the original cause of action is barred. As held in the case of Bhajahari Saha Banikya, ILR 33 Cal 881, which has been approved by the Supreme Court in the above quoted passage from the case of Uttam Singh Dugal and Company the award is a final adjudication of a Court of the parties own choice and until impeached upon sufficient ground in an appropriate proceeding, is conclusive upon the merits of the controversy submitted and it possesses all the elements of vitality even though it has not been formally enforced and it may be relied upon in a litigation between the parties relating to the same subject matter. It has been held by their Lordships of the Supreme Court in the case of Messers Uttam Singh Dugal & Company that as between the parties and their privies, an award is entitled to that respect which is due to judgment of a court of last resort. In our opinion, therefore, the Court of appeal below has rightly held that the suit was not maintainable." 26. The plaintiff appears to have relied on this document only to prove that before the panches, the defendant had admitted that the transaction between them was a mortgage (rehan). Two of the panches have been examined by the plaintiff in the case as P.Ws.. 2 and 3. They purport to have signed the award along with other panches. However, none of them has said in course of their evidence, that in their presence, the defendant had admitted that the transaction was actually a mortgage and not a sale. On careful scrutiny of this document, I find that the first leaf of the award is changed to suit the case of the plaintiff. The document purports to declare that in presence of the panches, Md. Yasin, the defendant accepted that the agreement was for rehan, but since he had no money lending licence, a document of sale with an agreement to reconvey the property had been executed. However, when the entire document is read, the story of transaction of mortgage having been agreed upon between the parties stands falsified because the contents of the other two leaves of the award unequivocally declare that the plaintiff was required to obtain a transfer deed in his favour from the defendant by paying to the latter a sum of Rs. 6500/-. 6500/-. Thus, the award simply militates against the story that the transaction was admitted to be a mortgage. Had the transaction been admitted by none else than the defendant himself, certainly the award would have directed him to hand over possession of the property to the plaintiff, as in view of the provisions of the Bihar Money Lenders Act, 1974, the mortgage stood redeemed. 27. Besides, there are reasons in support of my conclusion that the first leaf of Ext.2 has been changed. The writing on the first leaf is quite different from the writing on the remaining two leaves when looked with naked eyes. On the back of the stamp papers on which this document purports to have been scribed, the serial number of each leaf and the date of seal has been noted on the top left corner. The relevant portion of the second leaf purports to have been deliberately torn and on the third leaf, the serial number of the stamp porported to have been sold by the same vendor is mentioned as 4173 by making an overwriting upon figure 4. The first leaf of this document has not been numbered as leaf number 1 as in the case of the other document (Ext.1), the stamp which was purchased on the same date, i.e. 20.6.1980. However, serial number of the stamp sold by the stamp vendor has been noted in the top corner towards the left side on the back of the first leaf as 4174 dated 20.6.1980. If the third leaf of the bunch of the stamps sold by the same vendor on the same day is 4173, certainly the first leaf thereof could not be serialled 4174 as is noted thereon. Incidentally, serial numbers of the second and third leaves of the stamp papers on which Ext. 1 has been prepared are mentioned as 4175 and 4176 respectively. The top portion towards left where serial number of the stamp purported to be noted respecting leaf number 1, has been deliberately torn. Even the writings of endorsement made by the stamp vendor on the back of the second and third leaves of Ext.2 and the first, second and third leaves of Ext.1 are different from the writing of endorsement made on the first leaf of Ext.2 i.e. panch faisla. Even the writings of endorsement made by the stamp vendor on the back of the second and third leaves of Ext.2 and the first, second and third leaves of Ext.1 are different from the writing of endorsement made on the first leaf of Ext.2 i.e. panch faisla. Therefore, the award appears to have been purposely fabricated respecting the first leaf only to show that in presence of the panches the defendant had admitted that the transaction was a rehan (mortgage) to make it conform to the case of the plaintiff. 28. Thus, it is manifest that the document did not purport to incorporate an admission by the defendant before the panches that the transaction dated 16.11.1968 between him and the plaintiff was a mortgage instead of sale. Even if the award of the panches is accepted, if further stands as a stumbling-block for the plaintiff in maintaining the present litigation/suit. In both the decisions referred to above (Satish Kumar vs. Surendra Kumar and Gauri Shankar Prasad Sinha vs. State of Bihar), it has been held that once a dispute between the parties respecting any matter has been adjudicated upon and decided by a court of the choice of the parties themselves, even if the award was not enforced by making the same rule of the court, any subsequent litigation between the parties respecting the same subject matter is barred. Therefore, once the parties decided to refer their dispute to private panchayat under Ext.1 and that dispute was adjudicated upon and award made, the plaintiff deciding not to enforce the same,- probably because it was not to his liking,- he cannot be permitted to agitate the same matter over again by filing a suit in the court of law. Therefore, even the panch faisla (Ext.2) has not come to the rescue of the plaintiff in the present case. 29. The defendant has produced unimpeachable documents to show that as a matter of fact the transaction was out and out sale with agreement to reconvey the property to the vendor within the specified period of five years expiring on 16.11.1973. it appears that the same property was put to auction in a certificate proceeding against the plaintiff and sold to Abdul Gafar Ansari. The latter tried to get his name mutated respecting those lands. The defendant successfully resisted it by taking objection. it appears that the same property was put to auction in a certificate proceeding against the plaintiff and sold to Abdul Gafar Ansari. The latter tried to get his name mutated respecting those lands. The defendant successfully resisted it by taking objection. The defendant further got the sale in favour of the said Abdul Gafar Ansari set aside by the competent authority. The documents are Exts. 1 and J series as also Ext. K. The defendant has also produced rent receipts and chaukidari receipts respecting the suit lands in support of his claim that he was the rightful title holder on the basis of Ext. D. Above all, the most clinching statement was made by the plaintiff himself in paragraph 25 of his cross-examination when he stated that after the expiry of period of seven years, it dawned upon him to file the suit treating the transaction between him and the defendant as rehan. 30. Thus, in the above view of the matter, the impugned judgment and decree passed by the learned court below warrants no interference in this appeal. Therefore, the judgment and decree under appeal is confirmed and the appeal is dismissed with costs.