JUDGMENT : Heard the parties. 2. This Second Appeal, under Section 100 of the Code of Civil Procedure, has been filed against the judgment and decree dated 05.05.2008 passed by learned District Judge, Jamtara in Title Appeal No.02 of 2008 whereby and where under the learned First Appellate Court in the judgment of concurrence, has dismissed the appeal and decreed the suit of the plaintiffs and upheld the judgment and decree passed by the trial court. 3. The case of the plaintiffs in brief is that the suit land used to be jointly recorded in the names of Bishni Mondalain and Ojhala Mondalain during the last survey settlement before filing of the suit. The father of the plaintiff Dahru Mondal and his uncle Beni Mondal obtained the disputed suit land from the said Bishni Mondalain and Ojhala Mondalain by way of a private exchange on or about 29.09.1932 and the father and uncle of the plaintiff gave their portion of plot No.1398 of Mouza Karmatar to the aforesaid ladies in exchange. In pursuance to the said mutual exchange, a private paper of exchange was drawn up and reduced into writing by the parties in presence of the villagers on 29.09.1932. The father and uncle of the plaintiff immediately after the exchange entered into the possession of the suit land in the year 1932 while the said two ladies entered into the possession over the exchanged land bearing plot No.1398. Subsequently, the father and uncle of the plaintiff reclaimed the said exchanged land and converted the same to a Dhani (paddy) land at heavy cost. On the death of Dahru Mondal and Beni Mondal, the plaintiff being the only daughter of Dahru Mondal and sole heir and successor succeeded to all the properties including the suit property and entered into the peaceful cultivating possession thereof. The uncle of the plaintiff namely Beni Mondal and his wife died leaving no issues. The plaintiff has been in actual cultivating possession over the suit land by growing paddy crops thereon and enjoying the produce of the same. The plaintiff has also got her name mutated in respect of the suit land vide Mutation Case No.123/1976-77 in the court of Circle Officer, Jamtara vide order dated 31.03.1977. The plaintiff has been in actual cultivating possession over the suit land by growing paddy crops thereon and enjoying the produce of the same. The plaintiff has also got her name mutated in respect of the suit land vide Mutation Case No.123/1976-77 in the court of Circle Officer, Jamtara vide order dated 31.03.1977. The defendants have no concern with the suit land and during the cultivation in the year 1999, while the sons of the plaintiff went to the suit land for transplantation, the defendants being influential persons threatened to assault and the son of the plaintiff filed a case upon which a proceeding under Section 144 Cr.P.C. was registered and the Sub Divisional Magistrate, Jamtara directed the parties to seek remedy in the Civil Court and on 04.12.2000 also, the defendant created trouble in peaceful cultivation. Hence, the plaintiff filed the suit for:- (1) adjudication of right, title and interest of the plaintiff over the suit properties against the defendants, (2) confirmation of possession or in alternative recovery of possession over the suit properties through process of court, (3) order of injunction restraining the defendants not to disturb the possession of the plaintiff in future (4) cost of the suit, (5) other relief or reliefs. 4. In their written statement, the defendants challenged the maintainability of the suit on various technical grounds. They denied the contention of exchange of lands claimed by the plaintiff and claimed that the Memorandum of Exchange is a forged document and they also denied the possession of the plaintiff over the suit land. However, they admitted the mutation of the land in the name of the plaintiff but claimed that the same has been done on the basis of the forged Memorandum of Exchange. The defendants claimed that they are possessing the land and cultivating the land and growing the paddy crops. 5. On the basis of rival pleadings of the parties, learned trial court framed the four issues which read as under:- (i) Is the suit maintainable in law? (ii) Has the plaintiff valid cause of action for the suit? (iii) Whether the plaintiff has got valid title over the properties in suit? (iv) What relief plaintiff has got entitled in the suit? 6. The trial court considered the oral testimonies of the eight witnesses examined by the plaintiff and the documents which have been marked Ext. (ii) Has the plaintiff valid cause of action for the suit? (iii) Whether the plaintiff has got valid title over the properties in suit? (iv) What relief plaintiff has got entitled in the suit? 6. The trial court considered the oral testimonies of the eight witnesses examined by the plaintiff and the documents which have been marked Ext. 1 to 4 as well as the three witnesses examined by the defendants. After considering the evidence, the trial court came to a conclusion that the plaintiff has valid right over the property of the suit. In respect of the issue Nos.(i) and (ii), the trial court came to the conclusion that the suit is maintainable and the plaintiff has valid cause of action and in respect of issue No.(iv), the trial court came to the conclusion that the plaintiff is entitled to the relief and decreed the suit by holding that the plaintiff has right, title and interest over the suit land and confirmed the same. 7. Being aggrieved by the judgment and decree passed by the trial court, the defendant preferred Title Appeal No.02 of 2008 and the same was ultimately heard and disposed of by the learned First Appellate Court. The learned First Appellate Court recast the issue No.(iii) settled by the trial court by formulating the following two issues: (iii) (a) Whether plaintiff has right, title and interest and possession over the suit land? (iii) (b)Whether plaintiff was dispossessed by the defendants and was entitled for restoration of possession and injunction? 8. The learned First Appellate Court after considering the evidence in the record both oral and documentary came to the conclusion that the plaintiffs are entitled to right, title, interest and possession over the suit land till the year 1999 and concurred with the finding of the trial court in respect of the same. While arriving at such conclusion, the First Appellate Court relied upon the Ext. While arriving at such conclusion, the First Appellate Court relied upon the Ext. 1 being the Memorandum of Exchange deed dated 29.09.1932, the testimony of P.W.6- the plaintiff as well as the other witnesses and also the fact that though the defendants were aware about the land being mutated in the name of the plaintiff in the year 1977, had never objected to the same for a considerable period of time and no suggestion was given to the P.W.6 in her cross-examination that the mutation was a colluded one or that the proceedings of the mutation was not within the knowledge of the defendants as contended by them in their written statement. The learned First Appellate Court treated the Ext. 1- to be a thirty years old document, hence, held that the same is admissible under Section 90 of the Indian Evidence Act. The learned First Appellate Court discussed in detail the testimony of all the witnesses of the plaintiff who have corroborated the case of the plaintiff and also relied upon the Ext. 2 and Ext. 2/1 which is the ‘Parcha’ (Certified Copy of Record of Rights) of the suit land standing in the name of the plaintiff and Ext. 4 is the mutation order dated 31.03.1977. The learned First Appellate Court also relied upon the Ext.3 series which are the rent receipts issued to the plaintiff in respect of the suit land and believed that exchange has taken place as claimed by the plaintiff. In respect of issue No. (iii) (b) as recast by the learned First Appellate Court, the learned First Appellate Court came to the conclusion that the plaintiff has been forcibly evicted from the suit land in the year 1999-2000 and as the plaintiff was having right, title and interest over the suit land so the plaintiff was entitled for restoration of the possession. The learned First Appellate Court also concluded that the plaintiff is entitled to bring the suit and the suit is maintainable and ordered the declaration of right, title and interest of the plaintiff over the suit land and also passed a decree for restoration of the possession of the plaintiff over the suit land and permanent injunction against the defendants from interfering with the right, title, interest and possession of the plaintiff over the suit land. 9. 9. At the time of admission of this appeal vide order dated 03.11.2009, the following substantial questions of law were framed:- (i) Whether both the Courts have committed serious error of law in passing the impugned judgments without considering the admissibility of the plain deed of exchange into evidence? (ii) Whether the deed of exchange, being a transfer within the meaning of Transfer of Property Act, requires compliance of the mandatory provisions of the Registration Act? 10. Mr. Lakhan Chandra Roy- learned counsel for the appellants submits that both the learned courts below could not appreciate the evidence in the record in their proper perspective and illegally declared the right, title and interest of the plaintiff over the suit land. It is next submitted by Mr. Roy that both the courts below ought not to have relied upon the plain deed of exchange as the same was not admissible in evidence. It is further submitted by Mr. Roy that the deed of exchange being the transfer within the meaning of Transfer of Property Act requires compliance of mandatory provisions of the Registration Act and having not been registered the same ought not to have been admitted in evidence. It is lastly submitted by Mr Roy, that the impugned judgment and decree passed by both the courts below be set aside and the suit of the plaintiff be dismissed. 11. Mr. Kaushik Sarkhel- learned counsel for the respondents on the other hand defended the impugned judgment and decree passed by the learned First Appellate Court and submitted that it is not a case where the exchange has taken place by virtue of Memorandum of Exchange rather this is a case where there was a verbal exchange of land and subsequently a Memorandum of Exchange was prepared. Hence, the same was not mandatorily registrable under the provisions of the Indian Registration Act, 1908. It is further submitted by Mr. Sarkhel that in their written statement, the defendants knowing pretty well that the Memorandum of Exchange was not required to be registered has not taken such plea and consequently no issue was framed by the learned courts below, in this respect as there was no such occasion before the trial court to settle such issues. Sarkhel that in their written statement, the defendants knowing pretty well that the Memorandum of Exchange was not required to be registered has not taken such plea and consequently no issue was framed by the learned courts below, in this respect as there was no such occasion before the trial court to settle such issues. It is then submitted that therefore, for the first time it is not open for the appellants in this second appeal to raise a fresh ground that the Memorandum of Exchange is required to be registered when such a plea was not taken before both the courts below as the same requires the adjudication of the fact as to whether the Memorandum of Exchange was prepared subsequent to the actual verbal exchange is pleaded by the plaintiff, which fact is not possible to be adjudicated for the first time in this Second Appeal. It is next submitted by Mr. Sarkhel that the admissibility of the Memorandum of Exchange was never challenged before the trial court by the appellants, hence, the same cannot be challenged in this Court for the first time. It is further submitted by Mr. Sarkhel that this is not a case where the courts below have declared the right, title and interest of the plaintiffs solely on the basis of the memorandum rather the title of the plaintiff over the suit land has been declared on the basis of cogent evidence regarding her possession over the suit land followed by mutation and rent receipts and as an evidence, the Memorandum of Exchange was also taken into consideration and the defendants do not dispute the signatures of their ancestors over the Memorandum of Exchange. Hence, certainly the same can be used for collateral purposes more so when the document is a thirty years old and on that score also redemption about its genuineness can be drawn under section 90 of the Evidence Act. Hence, it is submitted that this appeal, being without any merit, be dismissed. 12. Having heard the rival submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that the defendants have not taken the plea that the Memorandum of Exchange is mandatorily registrable. It is the case of the plaintiff that consequent upon the oral exchange of lands subsequently the Memorandum of Exchange was prepared. It is the case of the plaintiff that consequent upon the oral exchange of lands subsequently the Memorandum of Exchange was prepared. The Hon’ble Supreme Court of India in the case of Subraya M.N. v. Vittala M.N. and Others reported in (2016) 8 SCC 705 wherein in the facts of that case where there was an oral relinquishment of share of the family members in the family settlement and family arrangement and the terms of the said family settlement was reduced into writing and it was only a memorandum executed subsequently recording the terms of oral settlement, enunciated the law that no registration of such memorandum recording the terms of oral family settlement is required. The said principle of law was approbated by the Hon’ble Supreme Court of India in the case of Korukonda Chalapathi Rao & Another vs. Korukonda Annapurna Sampath Kumar reported in 2021 SCC OnLine SC 847. 13. Section 17(1) of Registration Act, 1908 mentions the documents, registration of which is compulsory. The relevant portion reads as under: 17. The said principle of law was approbated by the Hon’ble Supreme Court of India in the case of Korukonda Chalapathi Rao & Another vs. Korukonda Annapurna Sampath Kumar reported in 2021 SCC OnLine SC 847. 13. Section 17(1) of Registration Act, 1908 mentions the documents, registration of which is compulsory. The relevant portion reads as under: 17. Documents of which registration is compulsory.— (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:— (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; (e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this subsection any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. Undoubtedly, Section 17(1)(b) makes ‘other non-testamentary instruments’, which purport or operate to create, assign, limit or extinguish whether in present or in future any right or interest whether vested or contingent of the value of Rs. 100/- and upwards in an immovable property compulsorily registrable. Undoubtedly, Section 17(1)(b) makes ‘other non-testamentary instruments’, which purport or operate to create, assign, limit or extinguish whether in present or in future any right or interest whether vested or contingent of the value of Rs. 100/- and upwards in an immovable property compulsorily registrable. In the case of Roshan Singh v. Zile Singh, (2018) 14 SCC 814 the question arose whether Exhibit P12 in the said case was an instrument of partition and therefore inadmissible for want of registration under Section 49 of the Registration Act or whether it was merely a memorandum of family arrangement. The Hon’ble Supreme Court of India has enunciated the law in paragraph- 9 as follows: 9. It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well-settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow : (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, Section 49 of the Act will prevent its being admitted in evidence. If it be not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondly evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition : See Mulla's Registration Act, 8th Edn., pp. 54-57.” 14. Now, coming to the first substantial question of law as undisputedly, the admissibility the Memorandum of Exchange made subsequent to the oral exchange has not been challenged before the courts below. Hence, this Court is of the considered view that both the courts below have not committed any error of law by passing the impugned judgment basing upon the oral evidence and the documents of mutation, Parcha and rent receipts without considering the admissibility of the Memorandum of Exchange as the Memorandum of Exchange made subsequent to the oral exchange is not mandatorily registrable and admissible in evidence. Further as the admissibility the Memorandum of Exchange made subsequent to the oral exchange has not been challenged before the courts below, there was no occasion for the courts below to consider the ground not agitated before them. The first substantial question of law is answered accordingly. 15. So far as second substantial question of law is concerned, as already indicated above undisputedly the Memorandum of Exchange was made subsequent to the oral exchange between the parties and in the considered opinion of this Court and in view of the settled principle of law in the case of Korukonda Chalapathi Rao & Another vs. Korukonda Annapurna Sampath Kumar (supra), relying upon a catena of cases wherein it has been held that the Memorandum of Exchange subsequent to the oral exchange and particularly when there is no material in the record to suggest that valuation of the property which was said to be a fallen land; at the time of exchange was more than Rs.100/-. Under such circumstances it cannot be said that the said Memorandum of Exchange requires compliance of mandatory provisions of the Registration Act. The second substantial question of law is answered accordingly. 16. Under such circumstances it cannot be said that the said Memorandum of Exchange requires compliance of mandatory provisions of the Registration Act. The second substantial question of law is answered accordingly. 16. In view of the discussions made above, this Court is of the considered view that there is no merit in this appeal and same is dismissed but under the circumstances without any costs. 17. Let a copy of this judgment along with the lower court records be sent back to the courts below forthwith.