1. This was a suit for possession of groves standing on certain plots. The suit has been decreed as to possession by the Court below but remanded on the question of damages. The defendants have come up in second appeal.
2. Two pleas have been urged:
(1) that the sale-deed of 1888 which forms the basis of the plaintiff's title to plots NOS. 2876, 2877 and. 2883 was invalid for want of registration;
(2) that the findings of the lower Appellate Court do not warrant its awarding to the plaintiff the trees of Nos. 2903 and 981.
3. As regards the first point, the sale-deed in question was for a sum of Rs. 32 only. The transfer could, therefore, be made either by a registered sale-deed or by delivery of the properly. The Court below holds that the registration was unnecessary as the plaintiff was already in possession of the property under a mortgage. This view is supported by the ruling of the Madras High Court in Muthukaruppan Samban v. Muthu Samban 25 Ind. Cas. 772 : 38 M. 1158 : 1 L.W. 754 : 16 M.L.T. 344 : (1914) M.W.N. 768 : 27 M.L.J. 497. In that case the learned Judges held that if there wasoral sale of the properties (and the same would apply to an unregistered sale), the fact that the vendee was already in possession would not render the sale invalid if the vendor by appropriate acts or declarations converted the possession of the vendee as mortgagee into one as purchaser.
4. The second plea is not borne out by an examination of the record. Both the plots in question are found to have been in possession of the plaintiff from a long time. No. 981 has been recorded in his name in the papers, 2903 corresponds, according to the judgment of the Court below, to the old numbers 2315 and 2316-1. 231b was entered in the name of the plaintiff's grandfather as far back as the khasra of 1871. Nothing is said as to 2315, but as the dispute in this case relates not to the entire plots but to trees standing on certain parts of them there is nothing to show that the Court below was wrong in holding that the trees fall on the land which has been in possession of the plaintiff and his ancestors in 1871. It is for the appellant, especially in second appeal, to show that the judgment of the Court below is wrong.
5. For these reasons I dismiss the appeal with costs.
6. The cross-objections put forward by the respondents which attack findings of fact have no force and are accordingly dismissed.
7. No objection has been taken by the plaintiff to the form of the decree passed by the Court below, but I should like to point out to B. Triloki Nath for his future guidance that in such a case as this the proper course is to remand an issue as to the amount of damages under Order XLI, Rule 25 instead of remanding the whole case under. Order XLI, Rule 23 as he has done.