JUDGMENT : Manindra Mohan Shrivastava, J. This first appeal is directed against the impugned judgment and decree dated 29th February 2015 passed by Third Additional District Judge, Durg in Civil suit No. 15-A/2011 whereby the plaintiff's suit has been dismissed. 2. Appellant/plaintiff filed suit for declaration that the plaintiff has acquired valid title and is in possession of the property in dispute after purchasing the same, for valuable consideration and is entitled to mutation of his name in place of respondent No.4. The plaintiff also sought declaration that the defendants had no interest or title in respect of the property in dispute and could not transfer the same to defendant No.3 or any other person by sale and further that a sale made in favour of defendants No.3, and power of attorney is illegal and inoperative. The plaintiff also sought a decree for permanent injunction against the defendants that they be restrained from interfering with the possession of the plaintiff. The aforesaid relief’s was sought by the plaintiff on the pleadings that the plaintiff and defendant No.1 & 2 had executed a Memorandum of Understanding on 26.11.99 that upon receipt of Rs. 33 lacs, defendants would transfer their business, movable and immovable property and it was further pleaded that the defendants No.1 & 2 delivered the possession to the plaintiff. According to the plaintiff, the property in dispute comprised of two shops, one shop No.34 at Akash Ganga, Supela, Bhilai and the other shop No. 8A at Dakshin Gangotri, Supela, Bhilai which, according to the plaintiff, was completely transferred in possession and title in their favour and they claimed to be in possession of the same. Further case of the plaintiff was that the defendants No.1 & 2 had agreed that after obtaining NOC from the Municipal Corporation, mutation would be completed. Further pleading was that it was agreed that a private limited company in the name of Millennium Bhilai Traders Pvt. Ltd would also be incorporated and defendant No.1 was made one of the Directors of the said Company. However, later on, it was pleaded that defendant No.1 taking undue advantage started misappropriating the assets where after he was removed from the office of Director, matter was reported to the police and criminal case was registered, charge sheet was filed. 3. However, later on, it was pleaded that defendant No.1 taking undue advantage started misappropriating the assets where after he was removed from the office of Director, matter was reported to the police and criminal case was registered, charge sheet was filed. 3. It was further pleaded that the defendants did not transfer the shops in favour of the laintiff despite having already received Rs. 3,75,000/- in respect of each of the shop. The defendants 1 & 2 had filed civil suit No. 23A/2002 before the civil court seeking recovery of possession and it was dismissed for want of prosecution and the application for restoration was also dismissed. The defendant No.4 did not accept the prayer for mutation on the ground that the so called MOU dated 26.11.99 is not registered where after the plaintiff approached the office of District Registrar who also did not take any steps and then the plaintiff was compelled to file petition before the High Court which was disposed of with directions but finally the district Registrar returned the document without any registration. Plaintiff's came to know that taking undue advantage of the situation, defendants 1 & 2 are attempting to transfer the shops to third party and attempts have been made to dispossess the plaintiff and some of the anti-social elements arrived at the shop on 30.01.2008, and on complaint, a case was registered at police station Supela. Later on, they came to know that in respect of shop No.8A the defendant No.2 entered into agreement to sell with defendant No.3 and the Power of Attorney was also granted in his favour. 4. The respondents 1 & 2 filed their separate written statement in which they denied the plaintiff's case that there was any Memorandum of Understanding upon defendants receiving any money. Defendants also denied the plaintiff's claim of possession over the property. In para 10 and 15 of the written statement, defendants stated that as the amount under the MOU was not fully paid therefore MOU stood automatically cancelled and that the agreement was for payment of Rs. 33 lacs and therefore the plaintiff is liable to pay proper ad valorem court fee of Rs. 33 lacs. 5. In para 10 and 15 of the written statement, defendants stated that as the amount under the MOU was not fully paid therefore MOU stood automatically cancelled and that the agreement was for payment of Rs. 33 lacs and therefore the plaintiff is liable to pay proper ad valorem court fee of Rs. 33 lacs. 5. Defendant No.3 in a separate written statement denied the plaintiffs claim and came out with the pleadings that defendant No.2 have delivered possession of the shop No.8A to defendant No.3 under an agreement of sale and payment of money. According to this defendant, money was paid and possession was delivered to defendant No.3 and one Dinseh Sancheti. All other averments in the plaint were denied. This defendant asserted that he was in possession of shop No.8A and denied plaintiff's claim of he being in possession of the said shop. Defendant No.4 Municipal Corporation, in its written statement, while denying the plaintiff's claim of having acquired title under agreement dated 26.11.99 for want of knowledge, came out with the plea that the shop in question could not be transferred as the two shops were allotted to defendants No.1 and 2 and they occupied the same in the capacity of the holder under the lease deed and no transfer could take place except with the permission of defendant No.4. Therefore MOU if any, executed between the parties is inoperative in law. 6. Defendant No.5 in his written statement while opposing the claims of the plaintiff, pleaded that the Bank advanced cash credit loan of Rs. 7,00,000/- on 16.11.05 to Smt. Shabana Mushtaq, Proprietor of M/s. Amin Enterprises and for securing the loan, defendant No.2 mortgaged by depositing title deeds of shop No.8A with defendant No.5/Bank, therefore, liability towards the payment of loan is the first charge when despite notice, loan was not repaid, the Bank proceeded to take steps under Section 13 (4) of the Securitization Act and proceedings of symbolic possession were drawn on 5.09.2010 in respect of the shop No.8A and therefore the Bank is in possession of the shop No.8A out of which the Bank is entitled to recover the loan amount along with interest. 7. 7. On the basis of the pleadings of the parties, learned trial court framed as many as 10 issues which are as below: ØŒ Okkn&Á'u fu"d"kZ 1- D;k oknh] fookfnr lEifRr nqdku Øekad 34] vkdk'kxaxk] lqisyk ,oa nqdku@IykWV ØŒ 8] Cykd&,] nf{k.k xaxks=h dk LoLokf/kdkjh ,oa dCtk/kkjh gS\ ugha 2- D;k] Áfroknh ØŒ 4 ls vfHkys[k esa fookfnr lEifRr ds laca/k esa Áfroknh ØŒ 1 o 2 ds LFkku ij viuk uke] ukekarfjr djkus dk vf/kdkjh gS\ ugha 3- D;k] Áfroknh ØŒ 1] 2] 3 vkSj 5 fookfnr nqdku esa fdlh vU; dks gLrkarfjr ;k foØ; djus dk vf/kdkj ugha gS rFkk muds }kjk Áfroknh ØŒ 3 ds i{k esa fd;k x;k lkSnk ,oa vke&eq[r;kjukek voS/k o 'kwU; gS\ Áfroknh ØŒ 5 dks fookfnr nqdku dks fdlh vU; dk gLrkarfjr ;k foØ; djus dk vf/kdkj gS rFkk Áfroknh ØŒ 1 vkSj 2 }kjk Áfroknh 3 ds li{k esa fd;k x;k lkSnk voS/k o 'kwU; gS 4- D;k fookfnr nqdku ls lacaf/kr vfHkys[k esa Áfroknh ØŒ 1 o 2 dk uke foyksfir djds muds LFkku ij oknh dk uke ntZ djus gsrq Áfroknh ØŒ 4 dks funsZ'k fn;k tkuk pkfg,\ ugha 5- D;k fookfnr lEifRr esa n[ky nsus ls Áfroknhx.k dks LFkk;h fu"ks/kkKk ,oa LFkk;h O;kns'k ds }kjk fu"ksf/kr fd;k tkuk pkfg,\ ugha 6- D;k nf{k.k xaxks=h] lqisyk fLFkr IykWV@nqdku uacj 8] CykWd , ds lEca/k esa ljQs'kkbZ ,DV ds v/khu dk;Zokgh djus ds dkj.k] vf/kfu;e dh /kkjk&34 ds vuqlkj O;ogkj U;k;ky; dk {ks=kf/kdkj ckf/kr gS\ gka 7- D;k oknh] Áfroknh ØŒ 1] 2 ,oa 4 dh iwoZ lgefr ds fcuk fookfnr nqdku ds laca/k esa oknh ls fd;k x;k ,eŒvksŒ;wŒ voS/k o 'kwU; gS\ gka 8- D;k Áfroknh ØŒ 4 dh iwoZ vuqefr ,oa lgefr ds fcuk Áfroknh ØŒ 1 o 2 dks fookfnr nqdku dks fdlh vU; dks vUrfjr djus dk vf/kdkj ugha gS\ gka 9- D;k oknh us vius okn dk mfpr ewY;kadu dj mfpr U;k;&'kqYd pLik ugha fd;k gS\ Áekf.kr ugha 10- Lkgk;rk ,oa okn&O;\ dafMdk 49 ds vuqlkj 8. Learned trial court found that the MOU did not create any title in favour of the plaintiff. It was also held that the plaintiff failed to prove the possession of the property in dispute. Learned trial court found that the MOU did not create any title in favour of the plaintiff. It was also held that the plaintiff failed to prove the possession of the property in dispute. Trial Court also recorded a finding that the two shops were built and leased by the corporation in favour of defendants No.1 & 2 and under the terms of lease deed, no transfer could take place without permission of the corporation. Learned trial court further held that in so far as the shop No.8 is concerned, the suit in respect of the same is barred under the provisions of Section 34 of the SURFAESI Act and thus, the plaintiff is not entitled to any relief. 9. Learned counsel appearing for the appellant assailed the legality and validity of the judgment principally on the submission that the MOU dated 26.11.99 has been duly proved by the plaintiff and the recitals therein proved that there was an intention of the parties to sell not only the running business in the hands of defendants No.1 & 2 but also the assets involved in the business which include movable as well as immovable property particularly, including the two shops. The present suit related to the shops which included movable assets in respect of which the parties entered into an agreement and upon receipt of valuable consideration, the defendants parted with possession, sale would be completed and also result in transfer of title in favour of the plaintiff. 10. The next submission of counsel for the appellant is that the plaintiff paid huge amount to the defendants, there was an agreement between the parties and the defendants received substantial amount which is not disputed and therefore, the defendants are not entitled to raise any dispute with regard to transaction of sale between the parties and merely because a formal deed has not been executed or registered it cannot be said that the plaintiff was not entitled for appropriate declaration of his title. The next submission is that as far as the possession is concerned, the defendants No.1 & 2 had earlier filed a suit for recovery of possession of the property in dispute against the defendants and the suit was, later on, dismissed. The defendant Mushtaq had admitted in evidence which is a strong piece of evidence of defendants admission regarding plaintiff's possession over the property in dispute. 11. The defendant Mushtaq had admitted in evidence which is a strong piece of evidence of defendants admission regarding plaintiff's possession over the property in dispute. 11. It is next submitted that while in respect of shop No.8A, some of the defendants particularly, defendants No.3 & 5 have come out disputing plaintiff's possession in respect of other shop No.34, there is no dispute raised either by defendant No.3 or defendant No. 5 regarding they having taken possession of the same. Learned counsel for the appellant further argued that the trial court swayed by erroneous finding that it had no jurisdiction under Section 34 of the SURFAESI Act has dismissed the suit as not maintainable whereas the plaintiff's suit is based on claim of title and it does not involve adjudication of loan liability between the defendants and the Bank. Counsel for the appellant further contended that the plaintiff having come into possession of the property and he not being a encroacher, is entitled to decree of injunction against all the defendants. 12. Learned counsel appearing for respondents 1 & 2 argued that the plaintiff's suit itself is not maintainable as the suit has been filed in the name of Rajesh Dhody in his personal capacity whereas the entire claim of the plaintiff is founded on a plea that the title of the two shops was acquired by a private limited Company namely Millennium Bhilai Traders Pvt. Ltd. The suit cannot be said to be filed by the Company but only by a private person, therefore, only on this ground the suit is liable to be dismissed. 13. Next submission of learned counsel for the respondents is that the finding recorded by the trial court that the suit is barred under Section 34 of the SURFAESI Act does not warrant any interference because the defendants have not only pleaded but also filed documents which prove that defendant No.2 had obtained loan from the Bank/respondent No.5 and had mortgaged the shop No.8A by depositing its title deed. What therefore plaintiff seeks to obtain as relief in the present suit is a decree of declaration of title and possession not only against defendants 1 & 2 but also against defendant No.5 which is a Bank which has already initiated proceedings by issuing notices therefore the suit in the present form for relief as sought by defendant No.5, is not maintainable under the law. In support of his submission, counsel for th respondents 1 & 2 places reliance upon the decision of the Supreme Court in the case of Robust Hotels Private Limited & Others Vs EIH Limited and Others with EIH Limited and Another Vs. Balaji Hotels and Enterprises Limited & Others reported in (2017) 1 SCC 622 . 14. Next submission of counsel for respondents 1 & 2 is that the so called MOU is not even admissible in evidence and has been wrongly admitted in evidence by the learned trial court, ignoring the mandatory provisions relating to it being scribed on stamped document under Article 5 of the Schedule 1 A of the Stamp Act. He would submit that if the case of the plaintiff is that the MOU is, in fact, a sale deed in respect of immovable property/property in dispute, in the present case, it is required to be registered. According to him, whether the plaintiff claims the document MOU as sale deed or as an agreement of sale, in both the cases, the law requires the document to be properly stamped and for want of stamping according to law, the document cannot be admitted in evidence. According to him, the said document cannot be used for any purpose whatsoever which would also include collateral purposes and, therefore, it cannot be looked into. In support of his submission reliance has been placed in the matter of Avinash Kumar Chauhan vs Vijay Krishna Mishra reported in 2009 Vol.2 SCC 532. 15. Counsel for respondents 1 & 2 further argued that the plaintiff's case of he being in possession, is primarily based on the assertion that the defendants had earlier filed a suit and also on the deposition of witness Mushtaq, in the earlier suit which is not relevant in view of provision contained under Section 33 of the Evidence Act, as before it is received, in evidence, Section 33 of the Act is required to be complied with which obviously, is not available in the present case as Mushtaq is one of the parties and also entered the witness box. Counsel further argued that any evidence with regard to the terms of so called agreement, would completely stand excluded under Section 91 of the Evidence Act. Counsel further argued that any evidence with regard to the terms of so called agreement, would completely stand excluded under Section 91 of the Evidence Act. With regard to the MOU the last submission is that even if the entire MOU is accepted and read in evidence, it does not pass any title or interest in favour of the plaintiff because no title could pass unless the deed is registered under the provisions of Registration Act as such, the plaintiff does not have title in the property. It is further submitted that the uncontroverted testimony of DW-1 Mushtaq proves that it is the defendant No.1 and 2 who are in possession of the property in dispute. He places reliance on the decision of the Supreme Court in the matter of Muddasani Venkata Narsaiah (dead) through legal representatives Vs. Muddasani Sarojana reported in 2016 Vol.12 SCC 288. 16. Learned counsel appearing for respondent No.5 submits that the plaintiff suit has rightly been dismissed by trial court because the suit in its present form and without claiming relief against the action of the Bank per Section 34 of SURFAESI Act. The Bank has obtained symbolic possession of the property, namely, shop No.8A towards realization of the loan advanced to one of the defendant and unless the plaintiff avoids these proceedings which have already been initiated by respondent/Bank through appropriate declaration and relief, he is neither entitled for declaration of title nor even protection of alleged possession. He also makes submission with regard to the validity of so called MOU by submitting that defendants No.1 & 2 were enjoying the limited interest as lease holder on specific terms and conditions of lease deed and in the evidence lead by defendant No.4 it has been proved that the terms and conditions of lease deed did not allow the defendants to transfer their interest in respect of the shops without prior permission of the Municipal Corporation and therefore, the MOU under any circumstances, would not create any right of title or interest in favour of the plaintiff. 17. We have heard counsel for the parties and bestowed our consideration thereon as also perused the records. 17. We have heard counsel for the parties and bestowed our consideration thereon as also perused the records. Following points arise for our determination in this appeal: “(a) Whether the plaintiff's suit is liable to be dismissed as not maintainable on the ground that it has been filed by Rajesh Dhody in his personal capacity and not by the private limited Company namely Millennium Bhilai Traders? (b) Whether the plaintiff's suit is barred under Section 34 of the SURFAESI Act? (c) Whether the plaintiff has succeeded in proving that he acquired valid title in respect of the shops No.34 and 8A on the strength of MOU dated 26.11.99? (d) Whether the plaintiff has proved that he is in possession of the property in dispute? (e) Whether the plaintiff is entitled to decree of declaration of title and possession?” 18. The plaintiff has filed the suit claiming declaration of title and injunction against the defendants on the fundamental premise that it was he who entered into the MOU with the defendants No.1 & 2 towards transfer of his running business as also movable and immovable assets. Even according to the plaintiff's pleading the private limited company had not come into existence but it was to come in existence at a later point of time under the stipulations of the MOU. Even if it were to be admitted in evidence, itonly talks of a memorandum of understanding between Rajesh Dhody and defendants No. 1 & 2 on the other hand and the recitals therein are that the company would be later on created and incorporated. True it is that in some of the pleadings of the plaintiff it is averred that money was paid on behalf of the company, it may have effect on the merits of the claim but we are not convinced that for that reason of Rajesh Dhody filing a suit in his personal capacity and not by the private limited company through Rajesh Dhody as one of its Director, suit is liable to be dismissed. 19. Next issue of vital importance arising for consideration is whether the present suit is barred by Section 34 of the SURFAESI Act. For this part, we are required to examine the provisions of the Act and then look into the suit as framed by the plaintiff. Section 34 of the SURFAESI Act reads as under : “34. 19. Next issue of vital importance arising for consideration is whether the present suit is barred by Section 34 of the SURFAESI Act. For this part, we are required to examine the provisions of the Act and then look into the suit as framed by the plaintiff. Section 34 of the SURFAESI Act reads as under : “34. Civil Court not to have jurisdiction- No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under the Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).” The aforesaid provision bars jurisdiction of the civil court to entertain any suit or proceeding in respect of any matter which a Debt Recovery Tribunal or the Appellate Tribunal is empowered by or under the SURFAESI Act to determine. The second part of the provision prohibits the court or other authority to grant any injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under the SURFAESI Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. 20. In order that the jurisdiction of the civil court is to be ousted it is required to be established that the matter which has been brought in the present suit by the plaintiff is one which the Debts Recovery Tribunal or Appellate Tribunal is empowered to determine under the provisions of the SURFAESI Act. As to what matter could be determined by the Debts Recovery Tribunal has been exhaustively dealt with under Section 17 of the Act, relevant provision of the same is extracted herein below: “17. As to what matter could be determined by the Debts Recovery Tribunal has been exhaustively dealt with under Section 17 of the Act, relevant provision of the same is extracted herein below: “17. Application against measures to recover secured debts-(1) Any person (including borrower), aggrieved by any of the measures referred to I sub-section (4) of section 13 taken by the secured creditor or his authorized officer under this Chapter, (may make an application along with such fee, as may be prescribed,) to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken: (Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.) [(1-A) An application under sub-section (1) shall b filed before the Debts Recovery Tribunal within the local limits of whose jurisdiction - (a) the cause of action, wholly or in part, arises; (b) where the secured asset is located; or (c) the branch or any other office of a bank or financial institution is maintaining an account in which debt claimed is outstanding for the time being.] [(2) The Debts Recovery Tribunal shall consider whether any of the measures refereed to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made there under. [(3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor are not in accordance with the provisions of this Act and the rules made there under, and required restoration of the management or restoration of possession, of the secured asset to the borrower or other aggrieved person it may, by order :- (a) declare the recourse to any one or more measures refereed to in sub-section (4) of section 13 taken by the secured creditor as invalid; and (b) restore the possession of secured assets or management of second assets to th borrower or such other aggrieved person, who has made an application under sub-section 9(1), as the case may be; and (c) pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) f section 13.] (4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under sub-section (4) of section 13, is in accordance with provision of this Act and the rules made there under, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse t one or more of the measures specified under Sub-section (4) of section 13 to recover his secured debt. [(4-A) Where- (I) any person, in an application under sub-section (1) claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,- (a) has expired or stood determined; or (b) is contrary to section 65-A of the Transfer of Property Act, 1882 (4 of 1882); or (c) is contrary to terms of mortgage; or (d) is created after the issuance of notice of default and demand by the Bank under sub-section (2) of section 13 of the Act; and (ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub-clause (d) of clause (I), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems ift in accordance with the provisions of this Act.]” 21. The matters which could be determined by the Debts Recovery Tribunal have been dealt with in the aforesaid provisions contained under Section 17 of the Act. Sub-section (1) provides that any person including borrower who is aggrieved by any of the measures referred to sub-section 4 of Section 13 taken by secured creditor may make application before the Debts Recovery Tribunal. Sub-section 1 (A) deals with territorial jurisdiction of the Tribunal. Sub-section 2 and 3 provide for the manner in which the DRT shall make enquiry and the orders that may be passed by the DRT. Sub-section 4 (A) also gives jurisdiction to the tribunal to deal with claim of tenancy or lease hold rights upon secured assets. The entire scheme of the Section 17 relates to enquiries to be made and decisions to be taken by the Debts Recovery Tribunal on certain matters but the provision does not confer any plenary jurisdiction on the Tribunal to decide the claim based on title claimed by any party who had no transaction whatsoever with the Bank but he has a claim based on title in respect of the property which appears to be involved for the reason that the subject matter was allegedly mortgaged with the Bank. 22. 22. It is well settled legal proposition that jurisdiction of the civil court conferred under Section 9 of the CPC is plenary in nature and exclusion thereof cannot be readily interfered. The said exclusion could be made either by express provision of law or by necessary implication there under. 23. In the present case, the plaintiff has brought the suit seeking declaration of title in respect of two shops, one being shop No. 34 and another being shop No.8A. The Bank which is impleaded as one of the defendant in the suit has come out with the plea that co-defendant had mortgaged one of these disputed properties with the Bank as security towards repayment of loan. If the Bank has taken the said plea that one of the shop was mortgaged with the bank and the bank has initiated proceedings for recovery of loan by taking measures under Section 13(4) of the SURFAESI Act against the burrower (codefendant) that by itself, would not confer any jurisdiction on the DRT to decide issue of title of dispute of property and the said issue can only be dealt with by the civil court because th claim of the plaintiff is based on the title to the property. 24. Counsel for the respondent has placed heavy reliance on the Supreme Court decision in the case of Robust Hotels Pvt. Limited & Others (Supra). In the said case, decision on the aforesaid settled legal proposition has been reinstated by the Supreme Court in earlier decisions as referred to in para 31,32 and 33 : “31. The scope and ambit of Section 34 of the Sarfaesi Act, 2002 have been considered by this Court in several cases. It is sufficient to refer to the judgment of this Court in Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corpn. Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corpn., 2009 8 SCC 646 . This Court held that the jurisdiction of the civil court is plenary in nature, unless the same is ousted, expressly or by necessary implication, it will have jurisdiction to try all types of suits. 32. Following was laid down in paras 110-111: (Nahar Industrial case, SCC p. 697) “110. It must be remembered that the jurisdiction of a civil court is plenary in nature. 32. Following was laid down in paras 110-111: (Nahar Industrial case, SCC p. 697) “110. It must be remembered that the jurisdiction of a civil court is plenary in nature. Unless the same is ousted, expressly or by necessary implication, it will have jurisdiction to try all types of suits. 111. In Dhulabhai v. State of M.P Dhulabhai v. State of M.P, AIR 1969 SC 78 , this Court opined: (AIR p. 89, para 32) ‘32. … The result of this inquiry into the diverse views expressed in this Court may be stated as follows: (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.’” 33. A perusal of Section 34 indicates that there is express bar of jurisdiction of the civil court to the following effect: “(i) Any suit or proceeding in respect of any matter in which the Debts Recovery Tribunal or Appellate Tribunal is empowered by or under this Act to determine. (ii) Further, no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.” Thus the bar of jurisdiction of civil court has to correlate to the above mentioned conditions. For the purposes of this case, we are of the view that this Court need not express any opinion as to whether suits filed by EIH were barred by Section 34 or not, since the issues are yet to be decided on merits and the appeal by Robust Hotels has been filed only against an interim order.” 25. Crux of the issue is that whether the Debts Recovery Tribunal would be competent to decide the issue of title over the property. If the Tribunal has no jurisdiction, by necessary corollary, jurisdiction of the civil court is not ousted. 26. Learned court below has recorded a finding swayed more by the fact that the Bank is also impleaded as one of the parties in the suit. Merely because the Bank is impleaded as one of the parties in the suit and the plaintiff apprehends that he may be ousted, if the claim is based on title, Plaintiff being foreignto the transaction between the Bank and defendant No. 1 and 2, therefore the suit cannot be said to be barred under Section 34 of the SURFAESI Act. We may hasten to add hear that this would not mean that it would automatically lead to grant of decree in favour of the plaintiff. But then the plaintiff's claim will have to be examined only by the civil court as Debts Recovery Tribunal would not have jurisdiction to declare his suit of tile and having held so we now come to the merits of the case. 27. The entire case of the plaintiff appears to be based on a pivotal document i.e. memorandum of agreement said to be executed on 26.11.1999. Learned counsel for the respondents raise serious objection with regard to the admissibility of the said document. We have heard counsel for the parties at length on the admissibility of the said document. We find that the respondents/defendants did not take any objection to the admissibility of these documents during trial and at this stage, we are also not inclined to go deep into this aspect of the case as even though MOU is admitted in evidence, it can hardly be an instrument of transfer of title in respect of the two shops in favour of the plaintiff's and against the defendants 1 & 2. The contents of the documents are in the nature of understanding arrived at between the two parties. The contents of the documents are in the nature of understanding arrived at between the two parties. It shows that the parties agreed that defendants 1 & 2 will transfer their running business which was in favour of the plaintiff for certain consideration and it would also have the effect of transferring assets involved in the said running business/for creating movable and immovable property. This document has been relied upon by the plaintiff because there is mention of disputed shops in the MOU. At the first place, the document does not specify the requirement of law of it being registered. As the case of the plaintiff is that the MOU dated 26.11.99 is, in fact, a sale deed, it must at once result in rejection of plaintiff's case as claim of title is based on an unregistered document. 28. In the suit, though plaintiff has come out with the case that MOU dated 26.11.1999 was an instrument of sale, defendants Mushtaq (DW-1) in his evidence had stated that the agreement was executed by the parties on 26.11.1999 for sale of property for consideration of Rs. 33 lacs and he received 15 lacs. Even if we accept it in favour of the plaintiff, it could only be an agreement of sale of the property. We must mention that on this aspect also counsel for the respondent raised objection with regard to admissibility even as an agreement of sale by submitting that the recitals being not scribed on a stamped document. It would not be even admissible for sale of the disputed property in view of Section 35 of the Stamp Act. We are not inclined to dwell much in this aspect because the present is a case where the plaintiff had sought a declaration of his title on the basis of MOU dated 26.11.1999 and not a case for Specific Performance of Contract. As the respondent had not taken any objection to the admissibility of the document during trial and further considering that even if we are to accept it as admissible document as agreement of sale in such situation also, the document, by itself, cannot be read as an instrument of transfer of title in favour of the plaintiff. 29. As the respondent had not taken any objection to the admissibility of the document during trial and further considering that even if we are to accept it as admissible document as agreement of sale in such situation also, the document, by itself, cannot be read as an instrument of transfer of title in favour of the plaintiff. 29. The plaintiff has come out with the pleading that there is some amount of evidence to show that the plaintiff paid money to the defendants 1 & 2, but then, in the absence of valid sale deed duly stamped and registered, we have no hesitation to hold that MOU dated 26.11.1999 would not result in transfer of any valid title in respect of the property in dispute in favour of the plaintiff. Therefore the plaintiff is not entitled to relief of declaratory decree of his title in respect of the two shops. 30. The plaintiff has also prayed for decree of permanent injunction against the defendants as consequential relief of declaration of title. Whether the plaintiff is entitled to any injunction against the defendants, if it is still in possession of the property in dispute, is required to be examined with reference to the pleadings, oral and documentary evidence led by the parties before the Court. The plaintiff in his pleading, claims to be in possession of the property in dispute. According to him and his plea in plaint, the possession of the property in dispute was handed over to the plaintiff by the defendants 1 & 2 upon execution of MOU and certain payments made by the plaintiff's to defendants 1 & 2. In this regard, evidence of PW-1 Rajesh Dhody is that defendants 1 & 2 sold and transferred their good will in the business along with the shop in dispute, furniture’s, pictures, movable properties, upon receipt of 33 lacs and upon sale, possession of the same was handed over to him in presence of two witnesses and since then, it is in his possession. In para 8 of his evidence, he deposes that on 09.01.08, attempt was made to forcibly dispossess him from the property. Thereafter, defendant No.1 entered into an agreement with defendant No.2 and then on 30.01.08 defendant No.3 insisted the plaintiff to vacate the premises failing which he would take recourse to other means. In para 8 of his evidence, he deposes that on 09.01.08, attempt was made to forcibly dispossess him from the property. Thereafter, defendant No.1 entered into an agreement with defendant No.2 and then on 30.01.08 defendant No.3 insisted the plaintiff to vacate the premises failing which he would take recourse to other means. He further stated that when he reported the matter to the police, proceedings under Section 145 Cr.P.C. were also initiated against defendants 1, 2 & 3 and when the matter was enquired by the police, it came to the knowledge of the plaintiff that the property has been mortgaged with UCO Bank. It is again stated in para 10 of the affidavit that on 04.06.09, the defendants 1 & 2 along with witness of defendant No.1, tried to dispossess the plaintiff and take possession by force which was reported to the police and a case has been registered under Section 448 IPC and proceedings are pending before the Court. In cross-examination, he has been given suggestion which he has denied that the shop has been occupied by Joy Banerjee. He admits that in the police station he had reported that Mushtaq Ahmad, Shabana Mushtaq Ahmad and Joy Banerjee had taken possession. He further admits that a case under Section 145 Cr.P.C. was also instituted which was finally dismissed. He denies the suggestion that in the shop No. 8A, he and Joy Banerjee have put their locks. He then admits that since the date of dispute, shop is closed. 31. In his cross-examination, he alsoadmits that he has not produced any document with regard to his possession but then states that he pays the rent for the same. He was then given a suggestion which has been denied by him, that the shops in dispute are in possession of Mushtaq Ahmed and Shabana Ahmed. In para 28 he states that the Bank had initiated the proceedings and issued notice of possession under the provisions of SURFAESI Act. The other witness of the plaintiff namely Anil Jain has deposed that does not know of any delivery of possession. 32. Defendants' witness Mushtaq (DW-1) who is one of the defendant claims that he and his mother are continuing in possession of the property in dispute. The other witness of the plaintiff namely Anil Jain has deposed that does not know of any delivery of possession. 32. Defendants' witness Mushtaq (DW-1) who is one of the defendant claims that he and his mother are continuing in possession of the property in dispute. The statement made by him in his affidavit that he and his mother are in possession of the property in dispute has not been controverted in his cross-examination. According to counsel for the respondents 1 & 2, as far as the evidence of defendants possession, as stated by this witness, has remained uncontroverted, the case of the plaintiff that he was in possession of the property on the date of filing of the suit, is liable to be rejected. For this purpose reliance has been placed on the decision in the matter of Muddasani Venkata Narsaiah (dead) through Legal Representatives Vs. Muddasani Sarojana reported in 2006 Vol.12 SCC 288. 33. The principle laid down in that decision is that where there is no effective cross-examination made on the plaintiff's witness, the effect of non cross-examination is that the statement of the witness would carry a presumptive value and ordinarily relied upon as truth of the fact stated in his statement. On this count, we would not be reaching to the conclusion only on this aspect but would be taking this into consideration other evidence on record led by the parties with regard to the aspect of possession of the property in dispute. 34. Defendant No.3 has come out with the case in respect of the shop No.8A that defendants 1 & 2 have entered into agreement with him for consideration of Rs. 10,81,000/- and he has paid part of consideration and also handed over the possession. In his evidence, this witness claims that he has been in possession of shop No.8A and also states that there was a dispute with regard to possession which led to initiation of proceedings under Section 145 Cr.P.C. and the shop has been locked both by him as well as the plaintiff. The evidence of this witness in so far as the possession is concerned, has not been controverted in his cross-examination. 35. A. Suryanarayana has been examined as witness on behalf of respondent No.5 who has deposed that towards recovery of the loan amount, advanced by the bank to Ms. The evidence of this witness in so far as the possession is concerned, has not been controverted in his cross-examination. 35. A. Suryanarayana has been examined as witness on behalf of respondent No.5 who has deposed that towards recovery of the loan amount, advanced by the bank to Ms. Amin enterprises of which Shabana Mushtaq is the proprietor, mortgage by depositing of title deed in respect of shop No.8A was agreed in favour of the Bank and later on on account of non-repayment of loan, bank has initiated proceedings under Section 13 (4) of the Securitization Act and has also obtained the symbolic possession of the property. While this witness has been subjected to detailed cross-examination from the plaintiff's side, there is nothing elicited therein to dispute the issuance of notice of symbolic possession. 36. The plaintiff, in order to prove his possession over the property in dispute, namely the shop No.34 and shop No.8 A, has strongly placed reliance upon the fact that earlier defendants 1 & 2 had filed a suit for recovery of possession but the same was dismissed for want of prosecution. The plaintiff filed two important documents for being used as admission of the defendants that the defendants filed suit for eviction against the present plaintiff Rajesh Dhody and two other persons in respect of the same property which is subject matter of dispute in the present case, one as Ex.P-4 copy of the plaint said to be filed by the defendants 1 & 2 before the court and the other being the evidence of Mushtaq Ahmed defendant No.1 filed as Ex.P-5. However, in this regard, serious objection has been taken by learned counsel for the respondents 1 & 2 that it could not be admitted as relevant piece of evidence in view of bar under Section 32 of the Evidence Act. He would submit that the evidence given by Mushtaq Ahmed as witness in earlier judicial proceedings would not be relevant as it is not a case where the witness is dead or could not be found or is not capable of giving evidence or it is a case where its presence cannot be secured without any delay or expenses which, in the opinion of the court, are unreasonable. He would submit that once Mushtaq Ahmd has been examined as one of the witnesses in the present case, his prior statement cannot be admitted in evidence as truth of facts stated therein. 37. After giving our anxious consideration to the said submission, we are not inclined to accept the same to reject the two documents as admissible evidence. The issue of relevancy of the statement of witness ,on principles embodied under Section 33 of the Evidence Act would be different. Section 33 of the Evidence Act reads as under: “33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.- Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court consider unreasonable: Provided that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross examine; that the questions in issue were substantially the same in the first as in the second proceeding.” In this regard we wish to refer to the judgment of the Supreme Court in case of Union of India Vs. Moksh Builders and Financiers Ltd. And Others reported in 1977 Vol. 1 SCC 60 wherein the Supreme Court examined this aspect and held as under: “22. So also, there is no force in the argument that the aforesaid admissions or statements of defendant 3 could not be read against him as they were not adverse to his interest when made. There is no such requirement of the Evidence Act and the argument is untenable as it unreasonably restricts the opportunity to prove the true state of affairs on the party's own showing and to demolish his subsequent claim as self-contradictory. There is no such requirement of the Evidence Act and the argument is untenable as it unreasonably restricts the opportunity to prove the true state of affairs on the party's own showing and to demolish his subsequent claim as self-contradictory. This p;oint has also been dealt within Wigmore on Evidence, – 1048(at page 4) in this way: It follows that the subject of an admission is not limited to facts against the party-opponent's interest at the time of making it. No doubt the weight of credit to be given to such statements is increased when the fact stated is against the person's interest at the time; but that circumstance has no bearing upon their admissibility. On principle, it is given that the probative reason why a party opponent's utterance is sought to be used against him is ordinarily the reason noted above, in para (1)b, viz. that it exhibits an inconsistency with his present claim, thus tending to throw doubt upon it, whether he was at the time speaking apparently in his own favour or against his own interest. The contrary view has been characterized by Wigmore as “a fallacy, in the fullest sense.” 23. Another argument which has been advanced against the admissibility of the aforesaid admissions of defendant 3 is that they would be evidence only in terms of Section 33 of the Evidence Act. The High Court also committed a similar error of law in its impugned judgment. The aforesaid admissions of defendant 3 are therefore satisfactory evidence to prove that he himself was the owner of the house and his son, defendant 2 was merely a “benamidar” for him.” In another decision, in the case of Ambika Prasad Thakur & Others Vs. Ram Ekbal Rai (dead) by his Legal Representatives & Others reported in AIR 1966 SC 605 , it was held that the admissions made by the witness in other litigation is admissible against him as admitted though, not admissible against other defendants. In the case of Dukhiram Dey Vs. Mrityunjoy Prasad Daw & Others reported in AIR 1982 Calcutta 294, relying upon various decisions of the Supreme Court, it was held as below : “20. PW-2 Sanwar and PW-6 Anil say that they do not know if there was a tea stall of Atin Datta on that land. In the case of Dukhiram Dey Vs. Mrityunjoy Prasad Daw & Others reported in AIR 1982 Calcutta 294, relying upon various decisions of the Supreme Court, it was held as below : “20. PW-2 Sanwar and PW-6 Anil say that they do not know if there was a tea stall of Atin Datta on that land. PW-7 Mrityunjoy (Plaintiff No.1) stated in the Seldah Court that Atin was a tenant of that property, vide Ext. O. though he denied the same in the trial curt while he was confronted with that statement. IN view of the bench case in (1922) 36 Cal LJ 186: (AIR 1921 Cal 781) Supreme Court cases of Bharat in AIR 1966 SC 405 , Union of India in AIR 1977 SC 409 and Sitaram V. Ramchandra Nag in AIR 1977 SC 1712 such statement can be taken as PW-7 Mrityunjoy's admission.” In yet another decision of the same court in the case of Jugal Kishore Kundu (deceased by LR's) and Others Vs. Narayan Chandra Kundu & Anothr reported in AIR 1982 Kolkatta 342 also similar view was taken as below: “Let us now deal with the alleged admissions made by the plaintiff. A fire broke out in the go down at Jangal Bandh Bazar in Jessore, and this has already been stated. Suit No. 2021 was filed in the Calcutta High Court in 1954, vide Ext. J. The present plaintiff made several admissions in that case. Law in this respect is well settled. It appears from the case of Narayan Vs. Gopal in (1960) 2 SCA 153; (AIR 1960 SC100) and of Awadh Kishore Vs. Ram Gopal in AIR 1979 SC 861 that an admission, though not conclusive, is decisive on the point unless it is successfully withdrawn or proved to be erroneous.” 38. In view of aforesaid decisions the same principle has been applied where the court admitted in evidence, the former statement of those who were party to the suit, to prove certain facts as admission. 39. The plaint and the evidence in the former suit are that the plaintiff's therein which includes defendants 1 & 2 of the present case had sought decree of eviction against the present plaintiffs and two other defendants namely Millennium Bhilai Traders Pvt. Limited and Smt. Chandrakanta Dhody. 39. The plaint and the evidence in the former suit are that the plaintiff's therein which includes defendants 1 & 2 of the present case had sought decree of eviction against the present plaintiffs and two other defendants namely Millennium Bhilai Traders Pvt. Limited and Smt. Chandrakanta Dhody. The plaintiff therein sought a relief for recovery of possession of the two shops which are disputed in the present case, from the defendants therein. Mushtaq Ahmed, one of the defendants herein, had been examined as plaintiff's witness and he deposed in para 3 of his evidence that he handed over the possession to Millennium Bhilai Traders Pvt. Limited. The plaintiff Rajesh Dhody has claimed to file this suit in his personal capacity and not a suit filed by the private limited company namely Millennium Bhilai Traders Pvt. Limited, which was arrayed as one of the defendant in the earlier suit, therefore, even if the evidence of Mushtaq Ahmed, given in the former suit, is taken into consideration as admission of fact of delivery of possession, it would be only admission of delivery of possession to Millennium Bhilai Traders Pvt. Limited. In that suit while the company was impleaded as one of the defendants, two other persons including the present plaintiff had been impleaded as one of the defendants. We have already held that present is not a suit by the company but by Rajesh Dhody in his personal capacity. The very first objection of the maintainability of the suit has also been rejected by us. Once we have already held that present suit has been filed by Rajesh Dhody in his personal capacity and not by the private company, the filing of earlier suit and the evidence of Mushtaq Ahmed in the said suit does not amount to admission of the fact that the possession was given to Rajesh Dhody. The issue of possession of shop No.8A is seriously disputed not only by defendants 1 & 2 but also by defendants 3 & 5. The plaintiff has failed to prove possession by any documentary evidence. In respect of Shop No.8A, evidence has come that there was serious dispute and defendant No.3 has obtained agreement from defendants 1 & 2 and on the other hand Bank claims and have taken symbolic possession of shop No. 8A also in the recovery proceedings. The plaintiff has failed to prove possession by any documentary evidence. In respect of Shop No.8A, evidence has come that there was serious dispute and defendant No.3 has obtained agreement from defendants 1 & 2 and on the other hand Bank claims and have taken symbolic possession of shop No. 8A also in the recovery proceedings. As far as the other shop No.34 is concerned, in absence of there being any clinching evidence of plaintiff's possession over the said shop and the evidence of Mushtaq Ahmed, nothing specific on the point that possession was handed over to the plaintiff Rajesh Dhody we find that the learned trial court has not committed any illegality in recording the finding of fact that the plaintiff has failed to prove his possession over the property in dispute whether it be shop No. 34 or shop No. 8A. 40. In the result, even though we come to a finding that the suit is not barred under Section 34 of the SURFAESI Act, on merits we do not find the plaintiff entitled to any relief and his suit has been rightly dismissed. Appeal therefore is found without any merit and is therefore, dismissed. Let appellate decree be drawn.