Devilal vs Smt. Devsir Bai and Another

T.P. Sharma, J.

Second appeal heard finally.

By this second appeal u/s 100 of the Civil Procedure Code, 1908 appellant has challenged the legality and propriety of the judgement and decree dated 13/3/93 passed by 5th Additional Judge to the Court of District Judge, Raipur in Civil Appeal no. 19-A/91 reversing the judgement and decree dated 25/6/91 passed by Second Civil Judge Class - 2 Raipur in Civil Suit no. 31-A/87.

Present second appeal has been admitted for consideration on the following substantial questions of law: -

Whether the Court below have erred in holding that the document (Ex. P-1) required registration?

Whether in view of the document (Ex. P-l) having been admitted by the parties, the Court below could have required to recognize the same merely because it was not acted upon in revenue papers?

As per pleading of the parties, appellant and respondents are brother and sister. Originally, property shown in Schedule -A & B was held by father of appellant and respondents Gangoo Dheemar. Partition took place between appellant and respondent No. 2 on or before 1967 relating to aforesaid property. Document was executed as Ex. P-l in the year 1984. Respondent No. 1 has filed suit for partition in separate possession of her share. Respondent no. 1 is not entitled for any share on the property owned and possessed by appellant and respondent No. 2, she may entitle for her share in the property left by her father Gangoo Dheemar. On the aforesaid grounds, suit for declaration of title over the property and injunction for partition was filed on behalf of the appellant and respondent nos. 1 & 2. They have filed separate written statement and have denied the allegations made in the plaint.

After providing an opportunity of hearing to the parties, learned Second Civil Judge, Class - 2, Raipur dismissed the suit which was challenged before the Lower Appellate Court and by judgement and decree impugned, appeal was also dismissed.

Ms. Renu Kochar, Advocate for the appellant is heard.

Judgement and decree of both the Courts below and records of both the Courts below are perused.

Learned Counsel for the appellant submits that Court below has not relied the documents Ex. P-1 which is not a deed of partition but is a deed of memorandum of partition does not require any registration. In the present case, only appellant has examined himself and his witness Dheluram, who had duly proved the execution of Ex. P-l memorandum of partition. Defendants/ respondents have not examined themselves and in absence of any evidence on behalf of the respondents only evidence adduced on behalf of the appellant is remain for consideration by examining himself and his witness Dheluram appellant has proved his case and discharged his burden.

Document Ex. P-1 clearly reveals that partition took place 10 years before the execution of such document. Ex. P-l clearly reveals that this is not a deed of partition but is a deed of memorandum of partition, which does not require any registration. Lower Appellate Court has held that Ex. P-l unregistered document of partition is not admissible in evidence it can be used for collateral purpose. Virtually, Ex. P-l is not a deed of partition but is a deed of memorandum of partition, it does not require any registration even otherwise if Ex. P-l is concerned, it clearly reveals that appellant and respondent No. 2 are in separate possession of the property shown in Ex. P-1. This property was not available for succession at the time of death of Gangoo Dheemar but Court below has not considered the fact that document Ex. P-l does not require any registration and only on the ground that it was not acted upon in revenue proceeding, document cannot be treated as memorandum as normal or fixatious. Appellant has examined himself and his witness Dheluram and duly proved the execution of Ex. P -1 and factum of separate possession but respondents have not examined themselves or any witness. In absence of any evidence against the pleadings and evidence of appellant, it is difficult to hold that present appellant and respondent no. 2 are owner of the land shown in Ex. P-l in their name.

Consequently, substantial question of law No. 1 formulated for decision in second appeal is decided as positive and substantial question of law No. 2 formulated for decision in second appeal is decided as negative. On the basis of decision on substantial questions of law No. 1 & 2, second appeal is allowed. Judgement and decree of both the Courts below are hereby set -aside. Suit is decreed and appellant and respondents are declared the owner of the suit property in accordance with Ex. P-l. Respondent No.1 is permanently restrained from interfering in the possession of the suit property.

Parties shall bear their own costs.

Advocate fee as per schedule

Decree be drawn up accordingly.