Banta Singh and others vs Hardeep Singh and others

J.V. Gupta, J.—This is Plaintiff''s second appeal whose suit for declaration has been dismissed by both the Courts below.

Briefly stated the facts are that Suhail Singh, father of Khem Singh was holding certain property in Pakistan which was ancestral in nature. After the death of Suhail Singh, his son Khem Singh purchased land from the income of the ancestral property in order to make his son Bachan Singh as Lamhardar. In lieu of his land held in Pakistan he was allotted 965 Kanals 7 Marias of land and Bachan Singh his son was allotted 294 Kanals 12 Marias of land in lieu of his land held in Pakistan. It was alleged that there was a dispute between the heirs of Khem Singh regarding the aforesaid land and ultimately the parties made a family settlement vide which Bachan Singh, Khem Singh got 316 Kanals 6 Marias of land. Gurdial Singh, Nachhatar Singh and Angrez Singh got land measuring 309 Kanals 7 Marias. Katar Singh Avtar Singh and Surain Singh got land measurihg 314 Kanals 12 Marlas. Jai Singh Gura Singh got 7/8th share and Bishan Kaur got 1/8th share i.e. 315 Kanals of land. According to the said settlement, a mamorandum of partition was written on 24.2.1965 mark ''A''. According to the Plaintiffs, since then the parties are in possession of the land allotted to them and have become their owners. In any case the Plaintiffs are in possession of the suit land since 24.2.1965 and they have become owners of the same by adverse possession. Bachan Singh having died, the land allotted to him has been inherited by Kartar Singh, Surain Singh and Avtar Singh the three brothers. However, the Defendant Surain Singh is backing out from the family settlement and hence the present suit was filed on 2.9.1981 for declaration. The suit was contested by Surain Singh, Defendant on the plea that no family settlement dated 24.2.1965 as alleged took place and that Khem Singh did not purchase land in the name of his father Bachan Singh as bena-midar from the income of the ancestral property. It was also denied that the parties were in possession of the land allotted to them as alleged in the plaint. The learned trial court found that the Plaintiffs have failed to prove that they are entitled to declaration as prayed for on the basis of family settlement deed dated 24.2.1965. Accordingly the trial Court, the said document is not proved as it requires compulsory registration being the partition deed. Moreover, the said document was never implemented as no mutation was ever entered into on the basis of the said document nor any entries were made in the revenue record. It was further found that it was not proved that Khem Singh purchased the land in the name of Bachan Singh father of Surain Singh from the income of the ancestral property. The Plaintiffs were not held to be the owners by way of adverse possession In view of these findings the Plaintiffs'' suit was dismissed. In appeal, the learned District Judge affirmed the said findings of the trial Court and thus maintained the decree dismissing the Plaintiffs'' suit Dissatisfied with the same the Plaintiffs have filed the second appeal in this Court.

During the pendency of this appeal the Plaintiffs also moved an application, CM. No. 1095-C of 1986 for producing additional evidence under Order 41, Rule 27, CPC in the form of Jamabandies, etc. Notice of this application was given to the opposite counsel who has filed his reply and also produced certain documents.

Learned Counsel for the Plaintiff-Appellants contended that the document dated 24.2.1965 Mark ''A'' was executed by way of family settlement and therefore was admissible as such and did not reqaire any registration. According to the learned Counsel, the view taken by the courts below in this behalf was wrong and illegal. It was further contended that from the evidence on the record particularly the nehri Girdawaris PW5/1 to PW5/15, it was proved that after the said settlement the parties have taken possession of their respective shares and since the said evidence has not been considered, the finding arrived at by the Courts below is vitiated.

On the other hand, the learned Counsel for the Defendant-Respondents submitted that from the evidence it has not been proved that Surain Singh signed the said deed dated 24.2.1965 and that being so, the same could not be relied upon. According to the learned Counsel, the said document could not be said to be a family settlement at all. It was a partition deed, if any, and therefore requires registration. Moreover, it was never acted upon and remained a paper transaction through-out and therefore was of no consequence as regards the partition between the parties. According to the learned Counsel, the partition of agricultural land was not valid till sanctioned by the revenue authorities and the co-sharers remained the joint owners in the same Khata till the Khatas are divided. In support of this contention he referred to Suba Singh v. Mohinder Singh (1983) 85 P.L.R. 613.

I have heard the learned Counsel for the parties and also have gone through the relevant evidence on the record. In the present case no specific finding has been given by the courts below as to whether the documents Mark ''A'' was executed by Surain Singh, Defendant or not. The courts below have mainly rejected the said document on the ground that it being a partition deed requires registration and therefore, in the absense of registration the same could not be looked into and secondly the aame was never acted upon and the parties continued in their possession as before. In these circumstances, it had become necessary for this Court to go through the evidence to find out whether Surain Singh singed the said document or not. The Plaintiffs in order to prove the said execution by Surain Singh examined Banta Singh, PW1, Angrej Singh Plaintiff, PW2 and Kartar Singh Plaintiff PW3 and in addition to that examined one Jarnail Singh, Sarpanch as PW4. In rebuttal the Defendants examined the scribe Tara Singh as DW1 and he himself came in the witness box as D.W. 2. The most material evidence in this case would be of Tara Singh who was the scribe. He has categorically stated that Surain Singh was not present at the time of writing of Mark ''A''. Angrej Singh, was having a kucha masoda with him and he was dictating from that. Surprisingly no question was put to him in the cross-examination with regard to Surain Singh and his signing that document. Surain Singh appeared as DW2 and he categorically denied in cross-examination that this document does not bear his signatures. No effort was made on behalf of the Plaintiffs to prove the said signatures by any expert evidence or otherwise. The only independent evidence could be that of Jarnail Singh PW4. By reading his statement as a whole it does not inspire any confidence. Moreover he has admitted that he is real son-in-law of Kishan Singh, i. e. the father of Banta Singh and Kahan Singh Plaintiffs and the daughter of Kishan Singh is married to him. He has further stated that Banta Singh and Kishan Singh are the real brothers of his wife. Thus, his interest in the Plaintiffs was quite obvious. Thus from the evidence on the record it could not be proved that Surain Singh duly executed the document Mark ''A''. If it is so held and the document is not taken into consideration on that account, then no other argument remains and the suit is liable to be dismissed on that short ground alone.

However, even otherwise the Plaintiffs have failed to prove on record that this partition, if any, was ever acted upon. Admittedly no report was made to the revenue authorities of the said alleged partition and no mutation, etc, was ever sanctioned on that basis. The argument raised on behalf of the Plaintiff-Appellants that Surain Singh was given the possession of the land which had fallen to his share according to the said document is also of no value because not only Surain Singh was to be given the land which had fallen to his share but all other co-sharers who were also given land thereunder should have also been in their respective possessions after the said settlement. No satisfactory documentary evidence was produced to that effect. Even the jamabandis produced in this Court by way of additional evidence did not prove the case of the Plaintiffs as to show that the parties were in their respective possession in accordance with shares given in Mark ''A''. In these circumstances, the said document, if any, remained only a paper transaction and was never acted upon. It is held by this Court in Suba Singh''s case (supra) that even if agricultural land is stated to be partitioned outside the court, that partition becomes valid only if the same is brought to the notice of the revenue authorities and sanction is obtained and only thereafter the Khatas are divided. Otherwise they continue to be joint owners in the same khata. As observed earlier, the Plaintiffs have failed to prove that the parties have entered into their respective possession in accordance with their shares given in Mark ''A''and therefore the said document if any, remained only a paper transaction and was of no consequence as to effect partition betwen the parties.

In these circumstances, no case has been made out for allowing the additional evidence and therefore the same is dismissed. Consequently the appeal fails and is dismissed with no order as to costs.