- (1.)THE plaintiffs have preferred this appeal against the decision of the Civil and Additional Sessions Judge of Baran.
(2.)THEY instituted a suit for declaration of owner-ship of a mango tree situated near the well of the defendant, and for recovery of a sum of Rs. 85/- from the defendant on account of the value of the mango crops removed by him, and also a sum of Rs. 175/-lying in deposit in the Tehsil office on account of the mango crops sold by the defendant. The plaintiffs alleged that originally the defendant and his brother Gopia, since dead, had mortgaged the tree for Rs. 70/- under a mortgage deed (Ex. 1) dated Magh Sudi 7 Svt. 1993. Later they borrowed another sum of Rs. 10/- and executed another document by way of mortgage on Baishakh Sudi 2, Svt. 1994 for a sum of Rs. 80/ -. A further sum of Rs. 20 - was again taken by the defendant and his brother mortgaging the mango tree again for Rs. 100 - on Shravan Badi 5, Svt. 1994. Thereafter Gopia, the other brother, died, and then it is alleged that the defendant Nathulal took a further sum of Rs. 30/- from the plaintiffs, and sold the tree in question on 13th of May, 1939, for a sum of Rs. 130/ -. The plaintiffs claimed that they continued to be in possession of the tree as owners after the sale in question, and enjoyed the fruits thereof until 16th January, 1951, when the defendant with a dishonest intent removed the crop from the mango tree and cut away two branches thereof. The plaintiffs estimated the value of the fruits at Rs. 30/ and that of the branches at Rs. 55/ -. THEY alleged that they started prosecution against the defendant for committing theft and causing damage to the tree in question, but the complaint was dismissed. During the pendency of the litigation it is said that the mango crop in 1951 was sold for Rs. 125/- by auction, and the sale proceeds amounting to Rs. 175/- are still lying in deposit in the Tehsil office. Accordingly the plaintiffs prayed for the reliefs aforesaid.
The courts below held that the sale deed and the mortgage deed were inadmissible in evidence, and as such the plaintiffs could not succeed in proving their title to the mango tree in question, and the suit as framed by them claiming to be owners of the said tree, therefore, had to fail. They have accordingly dismissed the suit in toto. The courts below have also found that the plaintiffs were not able to establish any indefeasible title by adverse possession.

It deed the learned counsel appearing before me concedes that adverse possession in the circumstances was impossible, and the purport of the sale deed set up by the plaintiffs could not have been to transfer completely the ownership of the tree in question. Here the learned counsel has proceeded to press his claim on a narrower basis. He submits that even conceding that the mortgage deed of Rs. 100/- or the sale deed were not admissible in evidence for want of registration at least the previous transactions evidenced by the other documents which were wrongly described in the plaint as mortgage deeds were admissible. He contends that these documents were in fact in the nature of agreements between the parties for the purpose of providing for the realisation of the interest on account of the money advanced by the plaintiffs from the fruits of the tree in question. As such the learned counsel submits that these documents were admissible in evidence, and the court below should have proceeded to act upon them. The definition of the term "immovable property" as given in section 3 of the Transfer of Property Act, shows that growing crops are not included in immovable property. Therefore the agreement that the plaintiffs were entitled to the crops of the tree in satisfaction of their interest due on the loan is not a transfer of any interest in immovable property so as to amount to a mortgage. The transfer or mortgage of a future crop neither sown nor cultivated at the time really amounts to an executory agreement binding on the parties to the transaction, and cannot be regarded as a mortgage in the restricted sense of the term. The principle is also borne out by a decision of the Allahbad High Court in Ramsarup vs. Mohanlal (A. I. R. 1924 Allahabad 833 ). These documents, in my opinion, are, therefore, admis-sible in evidence even though the sale deed may not be taken into account. They show that from time to time the plaintiffs had advanced money to the defendant and his brother and in lieu thereof they were enjoying the fruits growing on the tree in question. The courts below were, however, justified in dismissing their claim for ownership of the tree. Even so, the learned counsel urges that the document may not be treated as a sale deed but merely an arrangement for the enjoyment of the crops of the tree in lieu of the sum which had been advanced by the plaintiffs, i. e. the sum of Rs. 130/ -. If this argument be accepted, all that the plaintiffs may be entitled to is a decree for the sum of Rs. 130/- advanced by them. This was the maximum amount which they had paid to the defendant. I do not see how they can claim anything more on that basis. The courts below were justified in dismissing their suit for declaration of ownership of the mango tree, and their claim for the amount deposited on the basis of that ownership. I, however, think that although the claim as laid in court could not be sustained, there is no justification for refusing them a decree at least for the payment of the amount advanced.

I accordingly direct that a decree for Rs. 130/- only should be passed in favour of the plaintiffs. The appeal is allowed only to this extent. I do not think, in view of the manner in which they framed their relief, the plaintiffs are entitled to any decree for costs. They will however be entitled to interest pendente lite. .

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