Judgment :- Heard the learned counsel for the parties. 2. The parties are referred to by their rank before the trial court. It was the plaintiff’s case that the suit property originally belonged to defendant no.1. Defendant no.2 is the husband of defendant no.1. Defendant no.1 had agreed to sell the suit property for a sum of Rs.5,000/- to the Plaintiff and had received the entire sale consideration as on 30.7.1980 and the sale deed was executed on a stamp paper of Rs.500/-. There was an attesting witness in respect of the sale transaction. It is contended that since the villagers of Garagadoddi were agitating against acquisition of some portion of the suit property and their petitions in this regard were pending before the competent authorities, they were opposed to registration of the sale transaction. The land was also the subject matter of acquisition proceedings and therefore, the sale deed could not be registered. However, the Plaintiff had been put in possession and enjoyment of the suit property and she was cultivating the same. In this regard, the Plaintiff drew attention to a writ petition which was filed through the defendant’s mother before this court in its writ jurisdiction and the same having been allowed and acquisition proceedings having been quashed, the Plaintiff claimed that he has performed his part of the contract in having paid the entire sale consideration and she was ready and willing to have the document of sale executed in her favour. The first defendant inspite of oral demands had failed to execute and register the sale deed However, the sale deed was sought to be treated as an agreement of sale and a legal notice was issued calling upon the defendant to execute the sale deed. The defendant having replied denying the execution of the sale deed, a suit was filed. The suit was resisted by the defendants who denied the sale transaction and the plaint averments. It was incidentally contended that the first defendant had no title to the suit property inasmuch as a portion of the suit property had vested in the Government and alienation of such land being prohibited, the sale in favour of the first defendant by Nagamma was only nominal and therefore, she was not the owner of the property as on the date of the alleged sale transaction in favour of the Plaintiff. Incidentally, the respondents had in turn filed yet another suit in O.S.No.107/1989, for declaration and injunction whereby the defendant herein, who was the plaintiff there, claimed the relief of declaration that she was the owner of the suit property and for permanent injunction restraining the appellant - Plaintiff from interfering with her possession. The trial court had clubbed the said suit along with the suit filed by the Plaintiff herein and following issues were framed:- Issues in O.S.58/1989 1. Whether the Plaintiff proves that defendants received Rs.5000/- on 30.07.1980 and agreed to sell the suit schedule property to her? 2. Whether the Plaintiff proves that she was put in possession of the suit schedule property? 3. Whether the suit is not in time? 4. Whether the suit is not maintainable? 5. Whether the 1st defendant has no title to the suit property? 6. Whether the Plaintiff is entitled to the reliefs sought for? 7. What Order? ADDITIONAL ISSUES 1. Whether the defendant proves that the plaintiff get unfair advantage over the defendant if specific performance is granted? 2. Whether the document dated 30.07.1980 is not enforceable in view of the provisions of the Registration Act? Issues in O.S.No.107/1989 1. Whether the plaintiffs are in lawful possession of the suit land? 2. Whether the defendant prays that in pursuance to a contract of sale they have been put in possession of the suit property? 3. Is the suit not maintainable? 4. Whether the description of the plaint schedule property is true and correct? 5. Is the alleged interference true? 6. To what reliefs are the Plaintiffs entitled? 7. What order? On a detailed consideration of the pleadings, the evidence and the material documents, the trial court has primarily held that the execution of the sale deed was not proved as PW.1 had dithered in the course of her evidence to identify the signatures and to state categorically that the sale deed was executed by the defendant. Secondly, the trial court has also found that there was inconsistency in the evidence of PWs.2 to 5 in asserting the fact that they were witnesses to the sale transaction. Secondly, the trial court has also found that there was inconsistency in the evidence of PWs.2 to 5 in asserting the fact that they were witnesses to the sale transaction. Further, insofar as the evidence of the court commissioner is concerned, who had in his report stated that on a comparison of the signatures of the first defendant in the sale deed, which was said to be treated as an agreement of sale and having held that the signatures were that of defendant no.1, the trial court has disbelieved his evidence in the circumstance that he was a retired finger-print expert, who continued to use the official seals even after his retirement and such seals were found on his report as well and it is in that circumstance that the trial court rejected and negated his report in holding that the sale transaction was not established. Further, the trial court has also held that in view of the document sought to be specifically enforced being a sale deed having regard to its tenor, the question of specific performance of a sale deed required the defendant to execute and register yet another sale deed which would not arise, and the refusal to register the sale transaction provided a remedy under Section 77 of the Registration Act, 1908 (hereinafter referred to as ‘the Act’ for brevity) which the plaintiff ought to have availed of, failing which, the time for registration of a sale deed also being prescribed under the Act, the suit was hopelessly barred by limitation and therefore, the suit was not maintainable. It is on these primary findings, that the trial court has negated the suit of the plaintiff while decreeing the suit of the defendant in O.S.No.107/1989. Insofar as the dismissal of the suit of the plaintiff is concerned, an appeal was carried to the lower appellate court and the lower appellate court in turn had framed the following point for consideration namely, whether the trial court erred in holding that Ex.P.1 is not an enforceable document by virtue of the provisions of the Registration Act. Apart from this point for consideration, no other point was framed by the lower appellate court. Apart from this point for consideration, no other point was framed by the lower appellate court. The lower appellate court, however, proceeded to hold that from a plain examination and comparison of the signatures found on the agreement of sale or the sale deed and the admitted signatures of defendant no.1, though there was no much difference between the signatures, there was slight variation in the two letters of the alphabet and therefore, it could be held that the signatures were not proved and further, the lower appellate court affirmed the finding of the trial court that a suit was not maintainable in the light of section 77 of the Act which was an appropriate remedy and that not having been exercised, the suit for specific performance was not maintainable. It is this which is sought to be questioned in this second appeal. Incidentally, an appeal filed against the judgment and decree in O.S.No.107/1989, is said to be pending consideration before the lower appellate court, even as on date, in R.A.No.2007/2000. 3. The learned Senior Advocate Shri S.Sreevatsa, appearing for the counsel for the appellant, would contend that apart from the substantial questions of law which have been framed by this court at the time of admission, namely:- (1) Whether the courts below have committed an error in dismissing the suit for specific performance by holding that a suit was not maintainable in view of section 23 and section 77 of the Registration Act and (2) Whether the courts below have perversely appreciated the evidence and have committed an error in coming to the conclusion that the document Ex.P.1 is not proved, more particularly noticing the evidence tendered by the expert and the use of seal by the said expert in the manner in which it has been done? the following additional substantial questions of law would arise for consideration:- 1. Whether the court below are right in not noticing the fact that an unregistered sale deed can be enforced as an agreement of sale provided plaintiff approaches the court within time? 2. Whether the court below are right in holding that the suit is not maintainable in view of section 23 and 77 of the Registration Act? 3. Whether the court below are right in not noticing the fact that an unregistered sale deed can be enforced as an agreement of sale provided plaintiff approaches the court within time? 2. Whether the court below are right in holding that the suit is not maintainable in view of section 23 and 77 of the Registration Act? 3. Whether the courts below erred in not relying on expert evidence only because he had used a seal which he was using while in service?” In this regard, the learned Senior Advocate would place reliance on a judgment in the case of Kalavakurti Venkata Subbaiah vs. Bala Gurappagari Guruvi Reddy, AIR 1999 SC 2958 which has been referred to and followed in a later judgment in S.Kaladevi Vs. V.R.Somasundaram, (2010) SAR (Civil) 437. In the first of these decisions, the question was whether the respondent who had filed a suit for specific performance on the basis of a sale deed seeking a direction to register the same and for possession of immovable property, was maintainable. The Supreme Court while addressing the cleavage of opinion as between the various High Courts on the question whether such a suit was maintainable, has held as follows:- “10. Section 17 of 1908 Act is a disabling section. The documents defined in Clauses (a) to (e) therein require registration compulsorily. Accordingly, sale of immovable property of the value of Rs.100/- and more requires compulsorily registration. Part X of the 1908 Act deals with the effects of registration and non-registration. Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. Section 49 reads thus: “S.49-Effect of non-registration of documents required to be registered – No document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall – (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power. Unless it has been registered. Unless it has been registered. Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 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, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.” 11. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the Contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, unregistered sale deed of an immovable property of the value of Rs.100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act. 12. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act. 12. Recently in the case of K.B. Saha and Sons Private Limited V. Development Consultant Limited: (2008) 8 SCC 564 , this Court noticed the following statement of Mulla in his Indian Registration Act, 7th Edition, at Page 189:- “…The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner’s Court at Peshawar, Ajmer and Himachal Pradesh and the Supreme Court shave held that a document which requires registration under section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it…” This Court then called out the following principles:- “1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc., any right, title or interest in immovable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that, to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.” To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance. The learned Senior Advocate would submit that this decision has been referred to and followed in the latter judgment. The learned Senior Advocate would submit that this decision has been referred to and followed in the latter judgment. Suffice it to say that it is only when registration is refused by the registering authority under section 77, that it could be said a remedy under section 77 of the Act would have to be invoked. The larger relief of seeking specific performance of the agreement of sale, even though the document is styled as a sale deed, is not taken away, is the law as laid down by the above decision. In the instant case, notwithstanding that the document is styled as a sale deed, the relief of seeking specific performance of the said document cannot be said to be unavailable as laid down in the above decisions which has not been brought to the attention of the courts below. Therefore, the point for consideration which has been answered by the lower appellate court against the appellant would have to be reversed. Further he would contend that even if it could be said that the circumstance that an expert witness had utilised the seals of his office after his retirement, the correctness or otherwise of the report being negated on that ground was totally out of place. Even if such witness was liable for criminal prosecution on account of such illegal use of office seals, the evidentiary value of his opinion could not be summarily negated on that count and the learned Senior Advocate would submit that on these two grounds, the substantial questions of law would have to be answered in favour of the appellant and the appeal be allowed. 4. While the learned counsel appearing for the respondents would vehemently seek to justify the judgments of the courts below while taking this court through the material evidence and the pleadings of the parties to demonstrate that the findings of the courts below are findings of fact. The burden of proving the agreement or the sale deed was heavily on the plaintiff and that not having been discharged to the satisfaction of the courts below, would be a finding that has resulted in the suit being dismissed. This would not give rise to any substantial question of law. The burden of proving the agreement or the sale deed was heavily on the plaintiff and that not having been discharged to the satisfaction of the courts below, would be a finding that has resulted in the suit being dismissed. This would not give rise to any substantial question of law. Incidentally, the opinion expressed insofar as the suit for specific performance not being maintainable in respect of a sale deed and the evidence of the expert witness being negated would against be incidental since the primary requirement of proving the sale transaction was on the plaintiff and in that regard, the plaintiff having failed miserably, it cannot be said that the courts below have committed any error which warrants this court to address as a substantial question of law or which would require that the judgments of the courts below be reversed on that count. 5. Given the above facts and circumstances, the question of law as to whether a suit for specific performance was maintainable in the face of the deed in question being executed as a sale deed and registration of the same not having been completed for various reasons would disentitle the plaintiff to file a suit for specific performance need not detain this court for long having regard to the law as laid down by the Supreme Court in the case of Kalavakuri Venkata Subbaiah, supra. Therefore, the finding of the courts below that such a suit was not maintainable cannot be sustained. Secondly, insofar as the rejection of the Commissioner’s Report to the effect that the signatures found on Exhibit P.1 were that of defendant no.1 having been negated is not tenable. Even if the said witness was guilty of having utilised office seals which he was not entitled to do, the validity of his report could not have been rejected off-hand. Insofar as the tenor of Order XXVI Rule 9 or Order XXVI Rule 10A of the Code of Civil Procedure, 1908 is concerned, these are provisions which enable the court to seek the assistance of such person or expert in order to conduct a local investigation in order to adjudicate the dispute between the parties. It is an enabling provision which is invoked by the court at its discretion. It is not a right conferred on a party whereby on the application of a party if a commissioner is appointed. It is an enabling provision which is invoked by the court at its discretion. It is not a right conferred on a party whereby on the application of a party if a commissioner is appointed. If for some reason, the report was not acceptable and the court rejected the same as if it is tendered by the plaintiff, though the report of the Court Commissioner forms part of the evidence was out of place. If the court has not been satisfied of the expert’s evidence, it was incumbent on the court to have appointed another commissioner in a serious dispute such as this. The expert had opined that the signature on Exhibit P.1 was that of the first defendant, and this was all the more the reason for the court to have appointed yet another court commissioner if it was so warranted. The rejection of his report in the circumstance as aforesaid results in a miscarriage of justice. The incidental insufficiency in the evidence of PW.1 in not being able to assert categorically as to the execution of the document at Exhibit P.1 by the first defendant could not also be a ground to negate the entire transaction. When a suit is brought by the plaintiff based on Exhibit P.1 with express pleadings to that effect, bungling by the witnesses in the witness box, which may have been on account of so many factors, could not by itself negate the entire express pleadings of the party and the documents which were placed before the court. The further negation of the evidence of PWs 2 to 5 is also not readily acceptable. The further negation of the evidence of PWs 2 to 5 is also not readily acceptable. In any event, the suit filed by the defendant having been decreed in favour of the defendant and that pending consideration in an appeal would require that the present suit be remanded to the lower appellate court for a fresh consideration along with the appeal that is pending and if in the event that the lower appellate court should feel that the trial court was justified in rejecting the Commissioner’s Report, it would be incumbent on the lower appellate court to appoint yet another Commissioner to obtain his opinion, as to the signatures of the defendant said to be found in Exhibit P.1 and to frame such other points for consideration, which would arise having regard to the opinion expressed by this court in the light of the law as aforesaid and to decide the appeal afresh in accordance with law along with the pending appeal in R.A.2007/2000. Accordingly, the appeal is allowed and the judgment and decree of the lower appellate court is set aside.