RAVI R. TRIPATHI, J. ( 1 ) THE present Second Appeal is filed being aggrieved and dissatisfied by the judgement and decree dated 31/03/1978 passed in Civil Appeal No. 40 of 1977 by the learned 2nd Extra Assistant Judge, Baroda, whereby the appeal was dismissed and the judgement and decree passed in Regular Civil Suit No. 222 of 1973 by the learned Civil Judge (J. D.), Karjan, dated 18th December, 1976 was confirmed. ( 2 ) THE plaintiff, respondent herein, filed Regular Civil Suit No. 222 of 1973 to get the possession of the suit house from the defendant, appellant herein. It is the case of the plaintiff that he had good relations with the defendant and his family members from the time of deceased father of the defendant. As the plaintiff was in need of money, he demanded from the defendant. The defendant told the plaintiff to execute `an agreement to sale of his house situated at "brahman Vaas" at Village Dethan. On 29/12/1962, a document was executed wherein it is mentioned that the house of the plaintiff, having tin sheets along with "vada" is agreed to be sold for a sum of Rs. 1,200=00; and, that Rs. 900=00 is paid as "bana" amount and when the remaining amount is paid, the plaintiff will execute a sale deed. It is also mentioned that if the plaintiff repays the amount before execution of the sale deed, this document will not be used by the defendant; the possession of the house was given to the defendant in lieu of interest of Rs. 900=00; and, as no "pakka" sale deed was executed, the defendant was served with a notice to act as per agreement dated 29/12/1962. The said notice was replied by the defendant refusing to hand over the possession of the suit-house to the plaintiff, hence, he filed the suit. ( 3 ) THE controversy involved in the matter is centering around the relief sought for in the plaint. The plaint is produced at Exh. 1, wherein prayer clause, paragraph 7, reads as under :" (I) By virtue of the agreement to sale, dated 29/12/1962, on payment of Rs. 900=00, the plaintiff be awarded the possession of the suit property from the defendant. (II) The mesne profits till the plaintiffs get the possession of the suit property be also awarded. 1, wherein prayer clause, paragraph 7, reads as under :" (I) By virtue of the agreement to sale, dated 29/12/1962, on payment of Rs. 900=00, the plaintiff be awarded the possession of the suit property from the defendant. (II) The mesne profits till the plaintiffs get the possession of the suit property be also awarded. " (III)COSTS of the suit; (IV) Any other relief which will be in the interest of justice may also be awarded. "the suit was contested by the defendant by filing written statement at Exh. 10, wherein it was contended that the suit filed by the plaintiff is false and is not maintainable in its present form. The defendant denied that the plaintiff had borrowed a sum of Rs. 900=00 from him. It was the contention of the defendant that the plaintiff had handed over possession of the suit-house after executing the agreement to sale and the possession of the suit-house along with "vada" was given to him as an owner and that he is using the suit-house as owner since then. It was also contended by the defendant that after execution of the agreement to sale, the defendant had paid a sum of Rs. 300=00 in two installments, as the plaintiff was in need of money. But, even after taking the full amount, the plaintiff avoided to execute the sale deed under the pretext of his sickness and as the value of the suit house has increased, the suit is filed by the plaintiff. ( 4 ) IT is also on record that agreement to sale dated 29/12/1962 is not registered. By the Registration (Gujarat Amendment) Act, 1982, the Registration Act, 1908 is amended and now such documents are required to be registered. By inserting Clause- (aa) in Sub. Section (1) after Clause (a) of Section 17, such documents are required to be registered. Clause (aa) reads as under :" (AA) Instruments which purport or operate to effect any contract for transfer of immovable property. "the said amendment was given retrospective effect by insertion of Sub. Section 1-A after Sub. Section (1) of Section 17. Sub. section 1-A reads as under :"provisions of Section 23 shall apply to the instrument referred to in clause (aa) of sub. "the said amendment was given retrospective effect by insertion of Sub. Section 1-A after Sub. Section (1) of Section 17. Sub. section 1-A reads as under :"provisions of Section 23 shall apply to the instrument referred to in clause (aa) of sub. section 1 and executed before the commencement of the Registration (Gujarat Amendment) Act, 1982 as if in that section, for the words, "from the date of its execution" the words, figures and letters "from 1/03/1982" had been substituted". By the Gujarat Amendment Act, 1982, explanation contained in Sub. Section 2 of Section 17 was deleted. ( 5 ) MR. J. M. PATEL, learned Advocate appearing for the appellant, submitted that this Second Appeal involves a pure question of law. He submitted that the trial Court had rightly not relied upon the document in question produced at Mark 19/1, as the same is not registered. The learned trial Judge relied upon the document to come to the conclusion that the amount of Rs. 900=00 was paid by the defendant to the plaintiff and, hence, partly allowed the suit of the plaintiff and directed the defendant to hand over the possession of the suit-house to the plaintiff on receipt of Rs. 900=00. ( 6 ) THE defendant-appellant herein preferred Civil Appeal No. 40 of 1977 before the District Court, Baroda, which came to be dismissed. While dismissing the appeal, the learned first appellate Judge upheld the observations of the learned trial Judge to the effect that the "document was a simple agreement" and was not a document of "mortgage by conditional sale". The learned first appellate Judge observed that, "i accept the contention of the learned Advocate for the appellant to hold that the document, Exh. 19/1, dated 29/12/1962 purports to be an agrement to sale of the suit-house and that being so, the document did not require any registration and was required to be accepted by the learned trial Judge. " ( 7 ) MR. J. M. PATEL, learned Advocate for the appellant, submitted that after the enactment of the Registration (Gujarat Amendment) Act, 1982, the position of law has changed and in view of changed legal position, the document in question cannot be hold `admissible and to that extent, the learned first appellate Judge has committed an error. " ( 7 ) MR. J. M. PATEL, learned Advocate for the appellant, submitted that after the enactment of the Registration (Gujarat Amendment) Act, 1982, the position of law has changed and in view of changed legal position, the document in question cannot be hold `admissible and to that extent, the learned first appellate Judge has committed an error. He submitted that the first appellate Judge has given undue weightage to the failure on the part of the defendant-appellant herein to prove his title of the suit property. It was contended by the defendant in the written statement, Exh. 10, that he is in possession of the suit house by virtue of being `the owner of the same. About the evidence of the defendant, the learned Judge has opined that the deposition of the defendant is not trustworthy inasmuch as he is not consistent about the payment mentioned in the document in question. Finally, the first appellate Judge has held that the plaintiff is entitled to recover the possession of the suit property and consequently, the appeal of the appellant is dismissed, confirming the finding that the defendant has not become the owner of the suit house. ( 8 ) THE learned Advocate for the appellant submitted that in view of the amendment of Section 17 of the Registration Act by the Registration (Gujarat Amendment) Act, 1982, an `agreement to sale is required to be registered. Not only that, by insertion of Sub. Section 1-A, under the proviso to Section 23, the documents, which were executed prior to the Amendment, were given 4 months time starting from 1/03/1982 to get register. In view of that, the learned Advocate for the appellant contended that the document in question could not have been considered as admissible in evidence and once the document goes out of the evidence, the plaintiffs suit must fail because the plaintiff has based his suit only on the document in question, as is clear from the reliefs prayed for in the plaint referred to herein above. ( 9 ) MR. ( 9 ) MR. R. N. SHAH, learned Advocate appearing for the respondents, original plaintiffs, submitted that so far as the amendment of Section 17 of the Registration Act by the Registration (Gujarat Amendment) Act, 1982 is concerned, the Division Bench of this Court has held that the plaintiffs suit would not fail on the ground of compulsory registration of the document in question. He submitted that the Division Bench of this Court in the matter of Kaushik Rajendra Thakore vs. Allied Land Corporation and Ors. reported at 1987 (1) GLH (U. J.) 22, has held as aforesaid. The observations of the Division Bench in this regard are as under :"the Proviso to Section 49 of the Registration Act makes it abundantly clear that the suit of the plaintiff would not fail on the ground of compulsory registration introduced by amendment to Section 17 by Gujarat Act 7 of 1982. This contention was not originally raised in the trial proceedings, but we permitted the learned advocate for the appellant to argue on this contention, as it is purely a question of law. We reject the same contention, however, by relying on the proviso to Section 49 of the Registration Act, 1908. "on scrutiny of the facts of the case before the Division Bench, a suit was filed for specific performance and the document, which was relied upon and of which specific performance was sought, was not registered one. Therefore, the Division Bench on reading the proviso to Section 49 held that the suit of the plaintiff will not fail on the ground of `compulsory registration introduced by amendment to Section 17 by Gujarat Amendment Act 7 of 1982. The legal position, as laid down by the Division Bench, is binding. The proviso to Section 49 is reproduced herein below for ready perusal :"49. * * * * * Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1977, or as evidence of part performance of a contract for the purposes of Section 53a of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument. "on plain reading of the proviso, it is clear that the documents, which are unregistered, still effecting the immovable property and are required to be registered under the Registration Act, can be received as evidence of a contract, in a suit for specific performance under Chapter II of the Specific Relief Act, 1977. (emphasis supplied ). Secondly, it is provided that such documents will be admissible in evidence where the evidence is to the effect of part performance of a contract for the purpose of Section 53-A of the Transfer of Property Act, 1882. (emphasis supplied) lastly, it is provided that such documents will be admissible in evidence provided they are to be used as evidence on any collateral transaction not required to be effected by registered instrument. (emphasis supplied) ( 10 ) IN light of the aforesaid discussion, the reliefs prayed for by the plaintiff in the plaint become very material, which are referred to and reproduced herein above. It is clear from the relief clause of the plaint that the plaintiff has based his suit only on the document in question dated 29/12/1962. He has neither pleaded nor prayed that in the alternative, he, being the owner of the suit property, be held entitled for the possession of the suit property. ( 11 ) THE learned Advocate for the respondents relied upon a judgement of this Court in the matter between Nitinkumar Laxmidas alias Lakhubhai and ors. vs. Smt. Savitaben Pranshanker and ors. , reported in 1996 (1) GLH 224 . According to Mr. Shah, the learned Judge, while considering the effect of non-registration of a document, which is now required to be registered under Section 17, after it is amended by the Gujarat Amendment Act 7 of 1982, relying upon the aforesaid judgement of the Division Bench in the case of Kaushik Rajendra Thakore (supra), held that the suit of the plaintiff, which is filed for specific performance, will not be effected by the fact of non-registration of the documents in question. As discussed herein above, as the Division Bench judgement does not help the respondent-original plaintiffs, this judgement also cannot come to the rescue of the respondents. ( 12 ) THE learned advocate for the respondents also relied upon a judgement of the Honourable Apex Court in the matter between Kolathoor Variath and Anr. As discussed herein above, as the Division Bench judgement does not help the respondent-original plaintiffs, this judgement also cannot come to the rescue of the respondents. ( 12 ) THE learned advocate for the respondents also relied upon a judgement of the Honourable Apex Court in the matter between Kolathoor Variath and Anr. vs. Pairaprakottoth Cheriya Kumhahammmad Haji, reported at AIR 1974 SC 689 to contend that in the event of an oral mortgage with possession, the remedy of the mortgagor is to recover the possession on the strength of his title. The proposition of law laid down by the Honourable Apex Court is that if the mortgagor fails to get relief of possession on the basis of his alleged oral mortgage, he can fall back on his title to recover the possession. Paragraph 3 of the judgement of the Honourable Apex Court is relevant, which reads as under :"3. WHERE a plaintiff cannot regain possession on the basis of an oral mortgage as it cannot be proved in a court of law for want of registration, it is open to him to recover possession on the strength of his title. (See Ma Kyi v. Maung Thon, AIR 1935 Rang 230 at p. 232 (FB) and Hansia v. Bakhtawarmal, AIR 1958 Raj. 102 at p. 106. ). Luckily for them, the appellants did not base their suit solely on the oral mortgage. They also founded their claim on their title. Notice the relief A (1) in the plaint : "that in case the Court is of opinion that the plaintiffs are not entitle to sue on the strength of mortgage as there is no mortgage deed in respect of the properties, the plaintiffs are entitled to sue on the strength of the title of their Ravazhi and hence the Court may be pleased to decree the suit ordering the defendant to surrender the properties to the 1st plaintiff, with the past and future mesne profits relinquishing all the rights of the defendant. " In the paragraph 1 of the plaint they set up their title to the disputed land. In paragraph 4 of his written statement the respondent says that he is not a mortgagee but a tenant and has Kudiayma rights in the land. So far from denying their title, he has impliedly admitted that they are the owners of the land. In paragraph 4 of his written statement the respondent says that he is not a mortgagee but a tenant and has Kudiayma rights in the land. So far from denying their title, he has impliedly admitted that they are the owners of the land. Again, he has not claimed ownership of the land by virtue of adverse possession. He simply claims permissive possession as a tenant under them. In the result, they are entitled to regain possession in the strength of their title unless he is held to be or to have become under any Kerala land reform measure a tenant. "on reading paragraph-3, it is clear that the Honourable Apex Court found that luckily the plaintiffs did not base their suit solely on the oral mortgage. They had also founded their claim on their title. Unfortunately, in the case on hand, the plaintiff, being so advised, based his claim only on the document in question and not on the title. ( 13 ) THE learned Advocate for the respondents, at this juncture, submitted that the finding recorded by both the Courts that the defendant is not the owner of the suit property should come to his rescue and the judgement and decree passed by the Courts below be upheld. This submission of Mr. Shah cannot be accepted. It is a settled position that the plaintiff has to succeed in a suit on his own strength. He cannot succeed on the weakness of the defendant. It was the plaintiff who came to the Court pleading that the defendant is in possession of the suit house by virtue of a document dated 29/12/1962, and relying on the averments of that document, the plaintiff prayed for the decree for possession of the suit house. ( 14 ) IN view of the aforesaid discussion, the document in question cannot be looked into, as the suit filed by the present plaintiff does not fall in any of the three exceptions culled out in proviso to Section 49. In the result, the suit of the plaintiff is failed. However, it is made clear that failure of plaintiff in this suit does not mean that the plaintiff is rendered remediless. Remedy available under the relevant provisions of law can always be resorted to by the plaintiff for recovering the possession of the suit house, if it is so permissible. In the result, the suit of the plaintiff is failed. However, it is made clear that failure of plaintiff in this suit does not mean that the plaintiff is rendered remediless. Remedy available under the relevant provisions of law can always be resorted to by the plaintiff for recovering the possession of the suit house, if it is so permissible. The question is as to whether the plaintiff can succeed in the present suit, which is based solely on a document, which is not registered and which is made compulsory registrable under the Registration (Gujarat Amendment) Act, 1982. The answer is `no. ( 15 ) IN the result, the Second Appeal is allowed. The judgement and decree dated 3 1/03/1978 passed in Civil Appeal No. 40 of 1977 by the learned 2nd Extra Assistant Judge, Baroda, and the judgement and decree dated 1 8/12/1976 passed in Regular Civil Suit No. 222 of 1973 by the learned Civil Judge (J. D.), Karjan, are hereby quashed and set aside. Consequently, the Regular Civil Suit No. 222 of 1973 filed in the Court of learned Civil Judge (J. D.), Karjan, also stands dismissed. No order as to costs. .