Page No.# 1/21 GAHC010004302010 2026:GAU-AS:9945 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/25/2010 SMTI. MAYA DAS and 2 ORS W/O LATE BIPUL DAS. 2: CHANDU DAS @ SANJAY DAS S/O LATE BIPUL DAS. 3: SMTI PINKI DAS D/O LATE BIPUL DAS ALL ARE R/O SANKAR NAGAR TOKOBARI GUWAHATI DIST. KAMRUP M GUWAHATI VERSUS SMTI. TARUNI DAS and 2 ORS W/O LATE BHABENDRA DAS. 2:PRASANTA DAS S/O LATE BAHABENDRA DAS. 3:SMTI GITANJALI DAS D/O LATE BHABENDRA DAS ALL ARE R/O KUMARPARA GUWAHATI Page No.# 2/21 Advocate for the appellants : Mr. P. Choudhury Advocate for the respondents : Mr. N. Das Date on which judgment is reserved : 11.06.2026 Date of pronouncement of judgment : 20.07.2026 Whether the pronouncement is of the operative part of the judgment? : N/A Whether the full judgment has been pronounced? : Yes BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN JUDGMENT & ORDER (CAV) Heard Mr. P. Choudhury, learned counsel for the appellants. Also heard Mr. N. Das, learned counsel for the respondents. 2. This Regular Second Appeal, under Section 100 of the Code of Civil Procedure, is directed against the Judgment and Decree, dated 09.07.2008, passed by the learned Civil Judge No.2, Kamrup, Guwahati in Title Appeal No. 57/2007. 3. It is to be noted here that vide impugned Judgment and Decree, dated 09.07.2008, the learned Civil Judge (Senior Division) No. 2, Kamrup (M) at Guwahati (hereinafter, ‘First Appellate Court’); has allowed the Title Appeal No. 57 of 2007, and thereby set aside the Judgment and Decree, dated 30.05.2007, passed by the learned Civil Judge (Jr. Div.) No. 2, Kamrup, Page No.# 3/21 Guwahati, (hereinafter, ‘Trial Court’); in Title Suit No. 249/2006. 4. For the sake of convenience and to avoid confusion, the parties will be referred to by their original status in the Title Suit, before the learned Trial Court. Background facts :- 5. The background facts, leading to filing of the present appeal, are briefly stated as under:- “The predecessor-in-interest of the respondents as plaintiff had instituted a Title Suit No.2/89, which was re-numbered as Title Suit No.249/06, before the learned Munsiff No.2, Kamrup (M) at Guwahati inter-alia praying for declaration of his title, recovery of possession and permanent injunction in respect to the suit land against the predecessor-in-interest of the defendants, with some false and baseless allegations against the predecessor-in-interest of the defendants. The pleaded case of the plaintiff is that on 22-04-74, Sadeswar Das had mortgage about 10 lechas of land (i.e. the suit land) along with a house with four rooms, to the plaintiff for 3 years at a consideration of Rs. 2500/- vide a regd. mortgaged deed dated. 22-04-74 (i.e.Exhibit-1), and delivered possession of the same. Thereafter, Sadeswar Das fell ill and in urgent need of money, he had sold the same to the plaintiff for a consideration of Rs.70,000/- and executed a sale deed in favour of the plaintiff, on 05-11-74. The sale deed was presented for registration in the office of the Sub-Registrar, Guwahati. But, as the area of 10 Page No.# 4/21 lechas land was small, the Sub-Registrar declined to registrar the same and kept the same pending vide Receipt No.10518, dated 05-11-74 (i.e. Exhibit-2). The plaintiff had pleaded that he was delivered possession of the said 10 lechas of land (i.e. the suit land) along with the house of four rooms. Thereafter, mortgagee Sadeswar Das died leaving behind no heirs. Thereafter, on 09.02.1988, at about 7:30 pm, one Bipul Das the predecessor of the defendant forcefully entered and occupied the room of the tenant Patal Das, for which he had filed one FIR with the Bharalumukh Police Station, and thereafter, the defendant demolished the house and as a result the plaintiff of the case had moved away out of fear of his life. Thereafter, the suit was filed seeking the reliefs aforesaid. The defendants filed a written statement contesting and stoutly denying the claims of the plaintiff. In the written statement, the defendants had specifically pleaded that there is no cause of action for the suit, the suit is barred by law of limitation, it is bad for non-joinder of necessary parties as the heirs and legal representative of Late Sadheswar Das had not been made a party in the instant suit. The suit-land and the house were never in possession of the plaintiff and there was no occasion for Late Sadheswar Das to mortgage, the land and the house in favour of the plaintiff. It is stated that Late sibaram Das, the father-in-law of the defendant possessed and occupied the suit land and house prior to the year, 1974 and after his death his son, Bipul Las (since deceased) i.e husband of defendant No.1 Page No.# 5/21 and father of the minor defendants No.2 and 3 possessed and occupied the said land and house in an un interrupted manner and after his death, the present defendants have been possessing and occupying the said land. The house standing on the 10 Lechas of land (suit land) was constructed by Late Sadheswar Das, many decades ago, and the same got damaged and dilapidated due to wear and tear. The defendant No.1 and her husband, Late Bipul Das rebuilt and renovated the said house in 1988 and this house stands on a plot of land measuring 16Lechas covered by Dag No. 1279/1281(0), 661/662(N) respectively of K. P. Patta No. 231(0), 792/793(N). Out of the 16Lechas of land, 6Lechas devolved upon Late Bipul Das after the death of Late Sibaram Das and after the death of Bipul Das, the said land devolved upon the defendants. The remaining 10 Leches of land along with the house standing thereon, was in possession of Late Bipul Das since the life-time of Late Sadheswar Das and after his death, the defendants are in possession till today. Late Bipul Das paid land revenue and other taxes and was occupying one room the said house and the other rooms were let to other tenants. The plaintiff was never in possession or occupation of the suit land as well as the house standing thereon and Late Sadeswar Das was also not in occupation or possession of the aforesaid house during the lifetime. The defendants have further stated that Late Sadeswar Das has been suffering from ailment of leprosy and allied diseases since before 1974 and Late Sibaram Das and Late Bipul Das took Page No.# 6/21 care of him. It is denied that Late Sadeswar Das had sold the land to the plaintiff on 5-11-74 and presented the sale deed for registration before the sub-Registrar, Guwahati. It is stated that Sri Putal Das was the tenant under the defendants predecessor- in-interest Late Bipul Das and he vacated the room in favour of him by executing deed and that the plaintiff has no manner of right, title and interest over the suit land and on such count the suit is liable to be dismissed. Upon the aforesaid pleadings, the learned Tribunal had framed following issues:- 1. Whether there is any cause of action for the present suit? 2. Whether the suit is barred by limitation? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the plaintiff has right, title and interest over the suit land? 5. Whether the plaintiff was in possession of the suit land and the defendants have dispossessed the plaintiff from the suit land? 6. Whether the defendants are protected by right of adverse possession? 7. Whether the plaintiff is entitled for the decree as prayed for? 8. To what other relief/reliefs the parties are entitled for? Thereafter, considering the evidence so adduced during the Page No.# 7/21 course of trial and upon perusal of the case records and also hearing the arguments of the counsels of the parties, the Learned Court of Civil Judge (Jr. Div.) No.2, Kamrup(M), Guwahati vide Judgment & Decree dated 30-05-07 dismissed the said Title Suit No. 249/2006 of the plaintiff on contest with cost. That being highly aggrieved by the Judgment & Decree dated 30-05-07 passed by the learned Court of Civil Judge (Jr. Div.) No.2, Kamrup (M), Guwahati in the said Title Suit No. 249/2006, the plaintiffs had preferred an appeal being Title Appeal No.57/07, before the Civil Judge (Sr. Div.) No.2, Kamrup(M) at Guwahati. But, after hearing, the learned First Appellate Court, vide impugned judgment and decree dated 09-07-08 allowed the appeal by setting aside and quashing the judgment & decree dated 30-05-07 passed by the learned Trial Court and decreed the said Title Suit No. 249/2006 on contest with cost. 6. Then being highly aggrieved by the impugned judgment & decree dated 09-07-08, passed by the learned First Appellate Court, the defendants preferred the present Regular Second Appeal No. 25/2010, which was admitted by this Court for hearing vide order dated 15.03.2010, on the following substantial question of laws:- (i) Whether the First Appellate Court committed any illegality in rejecting the Trial Court's findings of compulsory registration of an instrument of the value of one hundred rupees and upward in deciding Issue No.4 ? (ii) Whether the learned First Appellate Court committed Page No.# 8/21 illegality in deciding the suit on the basis of the mortgage deed(Exhibit-1) and registration receipt (Exhibit-2) in absence of a valid sale deed? 7. This Court has carefully gone through the memo of appeal and also gone through the grounds mentioned therein and the substantial questions of law framed by this Court and also gone through the decisions referred to by learned counsel for both the parties and the records of the learned courts below. 8. It appears that the defendants, though filed written statement, yet they did not enter the witness box to tell their case and support the written statement. Therefore, the case so set up by the defendants cannot be accepted as correct and the learned Trial Court rightly, while answering the Issue No.6, had held that there is no evidence from the defendants’ side to prove that they are protected by the right of adverse possession, and thereafter, decided the said issue is in negative. Mr. Das, learned counsel for the plaintiff has rightly pointed this out during arguments and submits that the case of the defendants cannot be believed. And the decision of Hon’ble Supreme Court in Vidhya Dhar Vs Manik Rao and Another reported in (1999) 3 SCC page 573, so referred by Mr. Das also fortified his submission. 9. But, this does not relieved the plaintiff from establishing his case by pre-ponderance of probability. He has to stand upon his own legs and he cannot depend upon strength or weakness of the case of the defendant. Mr. Choudhury, learned counsel for the defendant has rightly pointed this Page No.# 9/21 out at the time of argument and this Court finds sufficient force in the same. Substantial Question of Law No.(I):- 10. In the instant case, the factors, giving raise to the first substantial question of law, were dealt with by the learned Trial Court in Issue No. 4 and 5 together, in its judgment. Finding of the learned Trial Court:- 11. The finding recorded by the learned Trial Court in Issue No. 4 and 5 are extracted herein below:- “According to the plaintiff, one Sadeswar Das mortgaged on 22-4-74 about 10 Lechas of land along with a four-roomed house to him for 3 years for consideration of Rs. 2,500/- and delivered possession of the same. Thereafter, being in need of urgent money sold the same to the plaintiff for a consideration of Rs.70,000/- and executed sale-deed in favour of the plaintiff on 5-11-74 and presented the same for registration in the office of the Sub- Registrar, Guwahati. According to the plaintiff, as the area of 10 Lechas was small, the Sub-Registrar declined to register the same and kept the same pending, Ext. 1 is the copy of the sale-Deed executed by Sadheswar Das in favour of the plaintiff. Ext. 2 is the receipt No 10518 of the Sub-Registrar office. As per section 17 of the Registration Act, 1908, if the value of the immovable property such as land is one hundred rupees and upwards, such document must be compulsorily registered. But, it appears from Ext. 1 that the consideration amount of the landed property is Rs. 25,000/- so the sale-deed has to be compulsorily registered whatever the area of the land Page No.# 10/21 might be without registration, the sale-deed cannot be said to have been executed and it is not a valid document in the eye of law. The plaintiff has also failed to examine the officials of the sub-registrar office to prove the sale-deed, so, the sale-deed is not proved. In the absence of valid sale-deed, the plaintiff has failed to prove his right title and interest over the suit land and his possession over the same. Furthermore, according to the plaintiff, one Gatal Das who was a tenant in the house standing over the suit land informed him that on 9-2-88 at about 7.30 P.M. the defendant along with his, brothers forcibly entered in the room occupied by him and threw out his belongings. But, the plaintiff has failed to examine the said, Sri Patal Das to prove that he was dispossessed from the suit land.” 11.1. Thereafter, the learned Trial Court, had decided both these issues in negative. It had held that the plaintiff has no right, title and interest over the suit land and the plaintiff was not in possession of the suit land and the defendants have not dispossessed the plaintiff from the suit land. Finding of the learned First Appellate Court:- 12. Indisputably, the learned First Appellate Court had not formulated any point for determination, though it is mandated by Order 41 Rule 31 CPC. However, it appears that the learned First Appellate Court had dealt with the issue in the following paragraphs of the impugned judgment as under:- “Now, during hearing of the appeal, learned counsel for the plaintiff/appellant Mr. P.K. Kalita stated that baring issue No. 4 and 5, other issues numbering 1, 2, 3 as well as 6 are all decided against the Page No.# 11/21 defendants by the learned trial Court and issue No. 4 and 5 regarding right, title and interest over the suit land as well as possession of the plaintiff over the suit land was decided against the appellant/plaintiff by wrong notion by accepting Ext- 1, a unregistered sale deed which was denied to be registered by the registering authority finding small quantum of land measuring 10 lechas and only a receipt for registration was given to the plaintiff by the Sub-Registrar office, Guwahati. It is the argument of Mr. P.K. Kalita that when all the legal issues are decided for the plaintiff/appellant and against the defendant/respondent only because one person namely Patal Das cannot be examined by the plaintiff/appellant, his suit cannot be discarded in to considering the factual situation of the matter and decision on issue No. 4 and 5 are found to be the crux of the dispute pertaining to the present appeal. Upon perusal of the certified copy of the judgment under challenge passed by learned trial Court as well as evidence adduced by the plaintiff side during trial of the original suit and the documents submitted by the plaintiff/appellant during hearing, it is found that vide Ext-1, the mortgage deed was executed and it was registered properly and Ext-2 found to be the receipt given by the Sub-Registrar Office dated 5/11/74 Ext-3 found to be one agreement dated 4/12/74 between Sadheswar Das and Bhabananda Das which is found to be a katcha deed of selling the land of 10 lechas by Sadheswar Das. But upon perusal of Ext-1 which is proved in original by my learned predecessor on 23/3/04 found to be a mortgage deed in between Sadheswar Das and Bhabananda Das dated 22/4/74 and it is not the sale deed prepared by Shri Sadheswar Das to the plaintiff presented before the Page No.# 12/21 Sub-Registrar office on 5/11/74 as per Fxt-2, the receipt bearing Sl. No. 10518 dated 5/11/74 and said deed of whatever nature left to be proved here in the original title suit by the plaintiff and as such acceptance of Ext-1 to be a unregistered sale deed is not based on facts but imaginary one. So, any sale deed allegedly executed by the plaintiff on 5/11/74 is left to be proved in any manner in the proceeding of the original suit and finding of learned trial Court accepting Ext-1, a mortgage deed as a unregistered sale deed presented by plaintiff before registering authority with a registration receipt Ext-2 dated 5/11/74 found not tenable and the issue decided on the basis of the same fact found to be having wrong finding upon which the decision arrived at by learned trial Court found not correct and not tenable in law. 12.1. Thereafter, the learned First Appellate Court had allowed the appeal and by setting aside the judgment and decree, so passed by the learned Trial Court, and thereafter, decreed the original Title Suit, bearing No. T.S. 249/06 (T.S. 2/89 old) on contest, with cost. 13. Thus, the entire factors, giving rise to the substantial questions of law ‘centered around’ Exhibit-1 and 2, which according to the learned Trial Court are an unregistered sale deed and one receipt issued by the Office of Sub-Registrar, Guwahati. But, according to the learned First Appellate Court Exhibit-1 is a registered mortgaged deed, proved in original. But, whatever be the nomenclature of the said document, be it sale deed or mortgage deed, the same was executed for transfer of an immoveable property. Page No.# 13/21 13.1. Indisputably, the alleged Sale Deed was not registered, though the same was submitted to the Office of the Sub-Registrar, Kamrup. And the Registrar had issued the Receipt - Exhibit-2. According to the plaintiff, the Registrar had refused to register the Sale Deed on the ground that the quantum of land was very small. However, Section 17 of the Indian Registration Act, 1908 provides that certain important documents related to immovable property must be registered. If they are not registered, they will not be legally effective for the purpose of creating or transferring rights in the property. Reference in this context can be made to the decision of Hon’ble Supreme Court in S. Kaladevi vs. V.R. Somasundaram reported in (2010) 5 SCC 401, wherein Hon’ble Supreme Court has reiterated that registration is mandatory for documents creating or transferring rights in immovable property. An unregistered sale deed does not pass title, and no court can recognise a transfer of immovable property, based on an unregistered document. In the case of Bhoop Singh vs. Ram Singh Major and others reported in (1995) 5 SCC 709, Hon’ble Supreme Court has clarified that the interplay between registration and stamp duty, holding that a document that is compulsorily registrable but not registered cannot be admitted even if it is properly stamped. Both requirements are independent and cumulative. 14. However, having gone through the record of the learned Trial Court, this court finds that Exhibit-1 in fact is a registered Mortgage Deed, No. 4305, allegedly executed by Late Sadeswar Das, in favour of one Bhabananda Das. Indisputably, the period of said mortgage was 3 years. However, the learned Trial Court had treated the same as Sale Deed. But, in fact the alleged sale deed was not exhibited by the plaintiff on the Page No.# 14/21 ground that the same was submitted to the Sub-Registrar, Kamrup Guwahati and the Sub-Registrar has issued a Receipt No. 10518, dated 05.11.1974, which was exhibited as -Exhibit-2. The ground assigned for non registration of the same by the Sub-Registrar was, as discussed herein above, that the quantum of land is very less, i.e. 10 lechas only. 14.1. However, inspite of the same being very less in quantum, the value of the said land and house was of Rs. 70,000/, as submitted by learned counsel for both the parties. And it is well settled that when value of the immoveable property is above Rs. 100/, for effecting a valid transfer of such property, the instrument must be registered instrument, as mandated by Section 17 of the Registration Act. In the instant case the learned Trial Court had held that the sale-deed has to be compulsorily registered whatever the area of the land might be without registration, the sale-deed cannot be said to have been executed and it is not a valid document in the eye of law. 15. This finding of the learned Trial Court appears to be correct and based upon sound principles of law. However, the learned appellate court had, in the impugned judgment, held that finding of learned Trial Court accepting Ext-1, a mortgage deed as a unregistered sale deed presented by plaintiff before the registering authority with a registration receipt Ext- 2 dated 5/11/74 found to be untenable and the issue decided on the basis of the said fact found to be not correct and not tenable in law and thereafter, it had set aside the finding of the Trial Court and thereafter, decreed the suit of the plaintiff. 15.1. Thus, it appears that the learned First Appellate Court, despite recording a categorical finding that any sale deed allegedly executed by Page No.# 15/21 the plaintiff on 5/11/74, is left to be proved in any manner in the proceeding of the original suit, had decreed the suit of the plaintiff. While decreeing the suit, the learned First Appellate Court, had failed to advert to the issue that the alleged sale deed, had not been registered and also not exhibited before the court except however, the receipt, allegedly issued by the Sub-Registrar, Kamrup, Guwahati was exhibited as Exhibit-2. 15.2. The learned First Appellate Court, had merely set aside the judgment and decree passed by the learned Trial Court for accepting Ext- 1, a registered Mortgage Deed as an unregistered Sale Deed presented by plaintiff before registering authority with a registration receipt Ext-2 dated 5/11/74, holding the same not tenable and having found such finding as incorrect and not tenable in law. 15.3. Mr. Choudhury, the learned counsel for the defendant has rightly pointed it out that the decision of the learned First Appellate Court is not justified in rejecting the findings arrived at by the Trial Court in respect of the Issue No. 4, that a document of immovable property having its value one hundred and upwards must be compulsorily registered, and the unregistered sale deed in question cannot be said to have been executed as it is not a valid document of tile, in the eye of law, and that the plaintiff suit is hit by Section 17 of the Registration Act, 1908. This Court finds substance in his submission, and accordingly, inclined to record concurrence to the same. The learned First Appellate Court on the basis of Exhibit-1 and 2, the registered Mortgage Deed and receipt of alleged Sale Deed, ought not to have decreed the suit of the plaintiff. The finding, so recorded by the learned First Appellate Court, being contrary to law, failed to withstand legal scrutiny, and accordingly, the same is liable to be Page No.# 16/21 interfered with. 16. Thus, substantial question of law No.1 flows out from the impugned judgment and decree, so passed by the learned First Appellate Court, and in view of the given factual and legal matrix, as discussed herein above, the same has to be answered in affirmative, and accordingly, the same stands answered. Substantial Question of Law No. (ii) 17. Moving forward to the second substantial question of law No.2, this Court finds that the learned First Appellate Court had, while decreeing the suit, had only relied upon the Mortgage Deed(Exhibit-1) and registration receipt (Exhibit-2) in absence of a valid sale deed. And as discussed herein above, it did so inspite of recording a categorical finding that any sale deed allegedly executed by the plaintiff on 5/11/74, is left to be proved in any manner in the proceeding of the original suit. And thereafter, it had decreed the suit of the plaintiff. 17.1. The learned First Appellate Court had failed to advert to the issue that alleged sale deed, had not been registered and also not exhibited before the learned Trial Court, except however, the receipt allegedly issued by the Sub-Registrar, Kamrup, Guwahati. It had merely decreed the suit of the plaintiff based upon Ext-1, a mortgage deed as a unregistered sale deed presented by plaintiff before registering authority with a registration receipt, Ext-2, dated 5/11/74, holding the same not tenable and having found such finding as incorrect and not tenable in law. The learned counsel for the defendant has rightly pointed it out that the learned First Appellate Court, while passing impugned judgment and Page No.# 17/21 decree dated 09-07-08, had failed to consider the material evidence on record and illegally arrived at such an erroneous finding. 17.2. Mr. Choudhury, the learned counsel for the defendant has submitted that plaintiff had instituted a Title Suit No. 2/89 (Title Suit No.249/06) before the Learned Munsiff No.2, Kamrup (M) at Guwahati inter-alia praying for declaration of title, recovery of possession and permanent injunction in respect of the suit land. He also submitted that without having any valid title deed and without proving any sale deed, the plaintiff cannot claim ownership over any land in a suit filed by him seeking for declaration of title over suit land. In support of such contention he had also relied upon a decision of Hon’ble Supreme Court in the case of Union of India and others vs. Vasavi Coop. Housing Society Ltd., reported in (2014) 2 SCC 269, wherein it has been held as under:- “It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.” 17.3. Thus, the submission of Mr. Choudhury is found to be well founded both in facts and in law. And accordingly, this Court is inclined to record concurrence to the same. 17.4. Though Mr. Das, learned counsel for the plaintiff, referring to the decision of Hon’ble Supreme Court in Vidhya Dhar(supra), submits that an adverse inference can be drawn against the defendant for failing Page No.# 18/21 to adduce evidence, yet, in view of the ratio laid down in the case of Vasavi Coop. Housing Society Ltd.(supra), his submission cannot be accepted and ratio laid down in the decision referred to by him would not advance the argument of Mr. Das. 17.5. A suit for declaration of title and possession can succeed only on the strength of its own title and that can be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. In the absence of establishment of their own title, the plaintiffs must be non- suited, even if the title set up by the defendants is found against them. In the instant case the prayer was for declaration of title, and as such the burden always lies on the plaintiffs to make out and establish a clear case for granting such a declaration. But, it appears that they have miserably failed to establish the same. On the basis of Exhibit -1 and 2 alone, in absence of registered sale deed or any other title document, the plaintiff cannot succeed in establishing their right, title and interest over the suit property. 17.6. Though Mr. Das, the learned counsel for the plaintiffs, has submitted that the plaintiffs have proved the execution of sale deed and also proved that only registration could not take place due to the small area of land and receipt of registration to that effect was issued by the Sub-Registrar Office which was exhibited as Exhibit -2 and that the plaintiffs also proved to the entry in the suit land on the strength of Exhibit 1 i.e. the Mortgaged Deed and that vide Exhibit - 3 the plaintiff had also proved the delivery of possession of the suit land to the plaintiff and that the contents of the Exhibit – 6, which is a police report, also Page No.# 19/21 clearly shows that the defendant had failed to show any document in support of their case, yet, such submission left this Court unimpressed. 17.7. It has already been held that burden to prove the case is always upon the plaintiff and it cannot rely upon the strength or weakness of the defendant’s case. While execution of sale deed could not be proved the other documents such as receipt and letter of delivery of possession, i.e. exhibit 2 and 3 and 6 are insufficient to establish the title of the plaintiff. Moreover, Exhibit- 3, which relates to handing over of possession, is also doubtful in as much as the possession has already appears to be handed when the suit property was allegedly mortgaged. Mention also to be made here that Exhibit-1 was executed on 22.04.74 and indisputably, the period of mortgage was three years. Said period expired in the year 1977, and the Title Suit No. 02/1989 was filed much later, i.e. in the year 1989. 17.8. The learned counsel for the plaintiff also, referring to a decision of Hon’ble Supreme Court in Abdul Rahim v. Sk. Abdul Zabar, reported in (2009) 6 SCC 160, submitted that the mortgage deed- Exhibit-1 is a registered instrument containing clear and unambiguous declaration of total transfer of property, and is still holding field and being registered document it carries with it a presumption of genuineness that it was validly executed and the defendants had never filed counter claim for cancellation of the same. It is to be noted here that in the case of Abdul Rahim (supra) Hon’ble Supreme Court has held as under:- “20. Indisputably, the deed of gift is a registered one. It contains a clear and unambiguous declaration of total divestment of property. A registered document carries with it a presumption that it was Page No.# 20/21 validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid.” 17.9. There is no quarrel at the Bar about the proposition of law laid down in the aforesaid case. However, even if it is accepted that Exhibit-1, being a registered instrument containing clear and unambiguous declaration of total transfer of property, and is still holding field and it carries with it a presumption of genuineness that it was validly executed and the defendants had never filed counter claim for cancellation of the same, then also it would not advance the case of the plaintiff in as much as the period of mortgage was for a period of three years from the date of execution of the same i.e. with effect from 22-04-74, on which it was executed. And the suit was filed in the year 1989, and before filing of the Title Suit No. 02/1989, the term of the deed expired. And as such this court afraid, such a contention of the learned counsel for the plaintiff cannot be accepted. 17.10. Over and above, a mortgage deed is not a deed to confer title of the property upon the plaintiff. It is not a document of title. A registered mortgage deed creates a charge/encumbrance but does not replace the underlying ownership proofs. A title deed refers to documents that establish ownership or a chain of title (e.g., sale deeds, gift deeds, partition deeds, or other instruments proving the owner's right to the property). It is the primary evidence of title/ownership. Whereas, mortgage deed is a separate instrument (under Section 58 of the Transfer of Property Act, 1882) that creates a security interest (mortgage) over the property for a loan/debt. It transfers only a limited interest (not full ownership) to the mortgagee while the mortgagor retains title subject to Page No.# 21/21 redemption. The mortgage deed records the terms of the loan and security but does not itself convey or prove full ownership. Therefore, the decision in Abdul Rahim (supra), would not advance the case of the plaintiff. 17.11. Thus, the second substantial question of law is also found to be involved in this appeal and the same has been answered in affirmative and accordingly the same stands answered. 18. This Court has also gone through the decisions referred to by Mr. Choudhury, learned counsel for the defendant and by Mr. Das, learned counsel for the plaintiffs. There is no quarrel at the bar about the proposition laid down in the said cases. But, in order to deal with the substantial questions of law, as formulated herein above, detailed discussion of the same found to be unwarranted. Conclusion: - 19. In the result, this Court finds sufficient merit in this appeal and accordingly, the same stands allowed. The impugned judgment and decree, so passed by the learned First Appellate Court stands set aside and quashed. Consequently, the judgment and decree so passed by the learned Trial Court dated 30.05.2007, stands restored. The parties have to bear their own costs. 20. Registry shall send back the records of the learned Courts below, along with a copy of this judgment and order. JUDGE Comparing Assistant