1. Appeal from the decree in A.S. No. 84 of 1921 on the file of the Court of the Subordinate Judge of Cocanada in O.S. No. 32 of 1920 on the file of the Court of the Principal District Munsif of Cocanada.
2. Plaintiff sues for certain portions of a house-site. Both Courts dismissed his suit and plaintiff appeals.
3. Issue No. II. Whether plaintiff was in possession within 12 years prior to suit, is a question of fact on which both Courts find against plaintiff; and he only seeks to traverse that finding in this second appeal by urging that the learned Subordinate Judge erred in accepting as evidence the unregistered gift deed Ex. V. There is no doubt that Ex V is a transaction affecting an interest in immoveable property and as such cannot be received in evidence unless it is registered. The Subordinate Judge, however, relying upon Varada Pillai v. Jeevarathnammal 46 I.A. 285 : 2 U.P.L.R. (P.C.) 64 : 22 Bom. L.R. 444 has admitted the document for the purpose of proving that possession was adverse. In the reported case it was sought to prove a gift, for which there was no registered deed, by its recital in a petition which also had been registered. The Judicial Committee decided that the petition could not serve as proof of the gift, but turning to another question, what was the nature of Doraisami's possession, the petition could be admitted in evidence. Thus the petition was not evidence of a gift, but evidence that some one had petitioned on the footing of a gift. Care must be taken not to extend this principle too far. For instance, in the present case, the Court cannot receive Ex. V in evidence to prove a gift and then infer that the defendant's possession was adverse; and justify its acceptance of Ex. V on the ground that it confines itself to the inference and is not concerned with the fact of the gift; because the inference is only based upon the fact; and if the fact cannot be proved by the unregistered instrument, nothing can be proved on which to found an inference.
4. But the document can go in, not to prove any definite gift, but to prove, for what it is worth, that there was talk of making some assignment at that date. That, at least, is how I interpret the ruling in Varada Pilial v. Jeevarathnamrnal 18 A.L.J. 274 : 46 I.A. 285 : 2 U.P.L.R. (P.C.) 64 : 22 Bom. L.R. 444 (P.C.). In Veerappan v. Mylai Udayan : AIR1925Mad1097 I had occasion to examine this very question with the aid of the ruling in Saraswatamma v. Paddayya 71 Ind. Cas. 274 : 44 M.L.J. 45 : 18 L.W. 418 and I observed: 'In my opinion if the document is filed on the strict understanding that it must not evidence any transaction affecting immoveable property, its scope in the majority of cases will be very small. At most I think it will evidence, as observed by Venkatasubba Rao, J., an intentiou.' In the present case, I doubt if Ex. V could evidence more than that the house site was too small to admit of a backyard, and the vendor was corresponding about it. But even on that assumption, and supposing that he read the whole document, I do not consider that the finding of the learned Subordinate Judge is vitiated. There is direct oral evidence of defendant's adverse possession and the District Munsif found in his favour even after rejecting Ex. V as inadmissible. There is no dispute about the exact areas occupied and Ex. V is really only useful in corroborating the oral evidence by showing that at the date when it was written, there was trouble about the insufficiency of the site. When it comes to considering the actual measurements in Ex. V they are of more help to the appellant than to the defendant because there are certain discrepancies between the original area in the document and that now occupied, vide para. 6 of the lower Appellate Court's judgment.
5. So it cannot be argued that the appellant was prejudiced by their consideration; and all that really operated upon the mind of the learned Subordinate Judge, in my opinion, was the part of Ex. V which can legitimately be regarded as evidence.
6. Accordingly I see no reason to remand the suit for fresh proceedings.
7. No other ground of appeal was raised or appears to be valid.
8. The appeal is dismissed with costs.