Sarabieet Singh v. Rajaram Singh — 1981 DIGILAW 403 (ALL)

JUDGMENT Deoki Nandan, J. - This is a plaintiffs' second appeal in a suit for partition. The trial court had in this case passed a preliminary decree declaring that the plaintiffs had a ?rd share only in the Kulhara situate on plot No. 182 having an area of 78 Links, including the cane-crusher etc. situate thereon. The lower appellate court held that the plaintiff's share in the Kulhara and cane-crusher etc. on the said Plot No. 182 was ?rd after the defendants' second set had transferred their ?rd share to the Plaintiffs by sale deeds Exts. 13 & 14: the remaining ?rd share being the share of the defendants first set Raja Ram Singh and Bhagwan Singh. 2. The plaintiffs had, in the plaint, claimed a ?rd share in the three houses with the Sahan Agwara and Pichwara and the well specified at the foot of the Plaint. 3. According to the plaintiff-appellants. Vishwanath Singh was the common ancestor of the parties. He had three sons Gopi Singh. Matadin Singh alias Matai Singh and Cauri Singh. Matadin Singh again had three sons Sarvjeet Singh. who heads the plaintiffs branch: Raja Ram Singh. the first defendant, who heads defendants first set; and Udai Rai Singh. defendant No. 3 who heads the defendants second set. It was not disputed. that house No. 1 was in possession of the defendants second set, headed by Udai Rai Singh defendant No. 3: house No. 2 was in possession of the plaintiffs headed by Sarvjeet Singh; and house No. 3 was in possession of the defendants first set headed by Raia Ram Singh. Udai Rai Singh transferred his share on 26-12- 1963 to his son-in-law Babu Ram Singh. vide - Ex. 14, who is the defendant No. 7 of the defendant third set. and he in his turn transferred the same on 16-1-1964 to Sarvjeet Singh plaintiff No. 1 vide-Ex. 13. Suit No. 511 of 1969, which was consolidated and tried together with the suit giving rise to the present second appeal and was dismissed by the trial court, was filed by Udai Rai Singh's son Hardwar Singh and his sons for cancellation of the said two sale deeds and that is how the two suits came to be consolidated. The first plaintiff claimed ?rd share as the son of Matadin Singh and ?rd share under the transfers made vide-Exts. 13 & 14. The first plaintiff claimed ?rd share as the son of Matadin Singh and ?rd share under the transfers made vide-Exts. 13 & 14. According to the plaintiffs although agricultural land was partitioned in consolidation proceedings, the house property was not partitioned. Raja Ram Singh contested the suit for defendants first set and Hardwar Singh contested it for the defendants second set. The case taken up by them was that there was a complete partition between the three brothers after the death of Matadin Singh and house No. 1 was allotted to Udai Rai Singh, house No. 2 to the plaintiffs' branch: and house No. 3 to the branch of Raja Ram Singh. However, there was a Pucca Chhawani towards the east of the road which was in a dilapidated condition at the time of partition, but the bricks and the material thereof were divided among the brothers equally and about 13 or 14 years ago the first defendant constructed a new Pucca house at the place where house No. 3 stood, at his own cost and expense, with the result that the present house No. 3 was not of the time of Matadin Singh and the parties have been in separate possession of their respective shares since the said partition between the parties, but the Kulhara on plot No. 182/1 had remained joint. It thus appears that no far as the decree for partition of the Kulhara is concerned, it can be deemed to have been based on consent. 4. The trial court upheld the defendants' case and held that there had been a previous partition among the three sons of Matadin Singh. as alleged by the defendants, and dismissed the suit except for granting the relief for partition of the Kulhara on plot No. 182/1. The only question which was raised before the lower appellate court was about the correctness of the defendants' case with respect to the three houses in suit having already been divided between the three sons of Matadin Singh. The lower appellate court has, on an appraisal of the evidence on record, upheld the defendants' case. 5. The only question which was raised before the lower appellate court was about the correctness of the defendants' case with respect to the three houses in suit having already been divided between the three sons of Matadin Singh. The lower appellate court has, on an appraisal of the evidence on record, upheld the defendants' case. 5. The basic point raised by the learned counsel for the appellants was that the earlier partition was reduced to writing but was unregistered and therefore, inadmissible in evidence, and that being so the other evidence relied upon by the courts below for upholding the defendants' case of previous partition was wholly excluded by the provisions of Section 91 of the Indian Evidence Act and could not have been relied upon or admitted in proof of the defendants' case of the alleged earlier partition. It was contended that the finding thus arrived at was based on inadmissible or no evidence and, therefore vitiated in law. 6. The original document said to contain the terms of the alleged previous partition and described as Phaat was filed in the consolidation proceedings before the Assistant Consolidation Officer, and a certified copy thereof was produced at the trial of the suit giving rise to the present second appeal. It is Ext. A-13 on record. The first attack on the admissibility of this document was that it being the basis of the defence, no presumption of the due execution of the original could be raised under Section 90-A and the original not having been produced, due execution thereof could not be proved even by leading oral evidence. Another attack against the admissibility of, and placing any reliance on. this document was that it was an instrument of partition and being unresigstered, its reception in evidence was barred. It was suggested that although the original could have been withdrawn from the record of the consolidation proceedings and filed in the suit, giving rise to this second appeal, but that was not done. 7. this document was that it was an instrument of partition and being unresigstered, its reception in evidence was barred. It was suggested that although the original could have been withdrawn from the record of the consolidation proceedings and filed in the suit, giving rise to this second appeal, but that was not done. 7. The original document, although a private document, being part of the public record kept by the consolidation authorities, it has to be deemed to be a public document within the meaning of Section 74 (2) of the Indian Evidence Act, the certified copy thereof has to be presumed to be genuine under Section 79 of that Act, and that being so the certified copy would be admissible as secondary evidence to prove the contents of the original under Section 65 of that Act. The first question, however, is whether the due execution of the original could be deemed to have been proved in accordance with law. Being basis of the defence, it could not be presumed that the original was executed by the persons by whom it purports to have been executed under subsection (1) of Section 90-A of the Indian Evidence Act in view of sub-section (2) thereof. The defendants met the situation by the statement on oath of the 4th defendant Hardwar Singh D. W. 1, who stated that the partition that was made by the Panchas was reduced to writing on stamp paper of Rs. 28/-. It was signed in the presence of the witness l and his brothers Raja Ram Singh. Sarvjeet Singh and Udai Rai Singh and the Panchas and that stamp paper was with Sarvjeet Singh who had filed it in the court of the Consolidation Officer in the case between the parties and the statements of Sarvjeet Singh, Udai Raj Singh and Ram Adhar Singh Panch were recorded in his presence. The statement of Ram Adhar Singh. one of the Panchas, made before the consolidation authorities, has been proved, vide Ex. A-1: that of Sarvjeet Singh, vide Ex. A-2: and that of Udai Rai Singh. vide-Ex. A-18, Ex. The statement of Ram Adhar Singh. one of the Panchas, made before the consolidation authorities, has been proved, vide Ex. A-1: that of Sarvjeet Singh, vide Ex. A-2: and that of Udai Rai Singh. vide-Ex. A-18, Ex. A-1, namely, the statement of Ram Adhar Singh before the Consolidation Officer, shows that the partition was made in the year 1952 with the consent of the parties, a month or two before the writing of the Phaat and that the original Phaat was written in the handwriting of Sabal Singh Panch. It was with the consent of the parties and read out and explained to them and it was signed by him and the other Panchas and was Ex. P-1 which recorded the partition of the agricultural land, houses and groves. Although by his statement Ex. A-2 Sarvieet Singh affirmed that the cultivation was joint, he admitted that there was partition some 5 or 6 years ago and Phaats were reduced to writing. His statement was recorded on 28-11-1958. Ex. A-4, which is certified cony of the list of papers filed before the consolidation authorities, shows that the original document was filed by Sarvieet Singh before the consolidation authorities on 9-1-1959 and it was proved by the statement of Ram Adhar Singh, one of the Panchas, which was recorded on 25-1-1959, vide - certified copy of his statement Ex. A-1. It is impossible, it my opinion, to say in face of this evidence that the original, of which Ex. A-13 is a certified copy was not signed by the persons who purported to have signed it or that it was not a genuine document or even that a partition as recorded therein, had not taken place between the parties. 8. The next question which, therefore, arises is whether the document is inadmissible for want of registration. The answer to the question would depend on the answer to the further question whether the document purports to be an instrument of parties or merely a record of partition which had already been arrived at between the parties. Ram Adhar Singh one of the Panchas, stated vide-Ex. A-1, that the partition had already been agreed to a month or two before the writing of the Phaats and the whole thing was based on the consent of the parties. The opening clause of the document reads as under. Ram Adhar Singh one of the Panchas, stated vide-Ex. A-1, that the partition had already been agreed to a month or two before the writing of the Phaats and the whole thing was based on the consent of the parties. The opening clause of the document reads as under. " vkt ge iapku gLFk rgjhj ,djkjukek mn; jkt flag o loZthr flag o jktkjke flag rk0 2&6&52 bZ0 muds gj ,d >xM+ksa dk fuiVkjk o cWaVokjk fuEufyf[kr jhfr ls fd;k " Further, while in the case of Sir. Khudkasht and hereditary tenancy lands it was said that each one of the parties was in possession of his ?rd share which appear to be proper and no change was accordingly made therein: in the case of groves and trees it was said that three lists were prepared after partition of the same and one list each was given to each one of the three brothers and in respect of the three houses also it was said that one house was given to Udai Rai Singh, the second house to Sarvjeet Singh and the third house to Raia Ram Singh and certain further properties were also allotted for equalising the partition. Nevertheless, it is difficult to say that the document could overate as an award or as an instrument of partition. The fact remains that it was a family settlement of the disputes between the brothers with the aid of the Panchas. It appears to have been acted upon and followed for about. 14 or 15 years until the filine of the present suit. for it is said in the plaint itself that the three sons of Matadin Singh had been living separately in a house each of the three houses, but it was alleged that was for convenience of management. 9. I am accordingly of the opinion that the document. Ex. A-3, was a family settlement and not an instrument of partition. It was admissible in evidence and the execution of the original was duly proved. I would, in this context. also rely on the law declared by the Supreme Court in Kashinathsa Yamosa Kabadi v. Narsingsa Bhaskarsa Kabadi, ( AIR 1961 SC 1077 at p. 1084) which is to the following effect: "The records made by the Panchas), about the division of the properties, it is true, were not stamped nor were they registered. I would, in this context. also rely on the law declared by the Supreme Court in Kashinathsa Yamosa Kabadi v. Narsingsa Bhaskarsa Kabadi, ( AIR 1961 SC 1077 at p. 1084) which is to the following effect: "The records made by the Panchas), about the division of the properties, it is true, were not stamped nor were they registered. It is, however, clear that if the record made by the Panchas in so far as it deals with immovable properties, is regarded as a non-testamentary instrument purporting or relating to create, declare, assign, limit or extinguish any right, title or interest in immovable property, it was compulsorily registerable under Section 17 of the Registration Act, and would not in the absence of registration be admissible in evidence. But in our judgment, the true effect of what are called awards is not by their own force to create any interest in immoveable property, they recorded divisions already made and on the facts proved in this case, their validity depends upon the acceptance by the parties. The records made by the Panchas were documents which merely acknowledged partitions already made and were not by law required to be registered. On a perusal of Ex. 456A which is a translation of the Tippan book in which are recorded the decisions which are signed by the parties, it is evident that the Panchas were merely recording what had been actually divided and they were not seeking to set out their decisions relating to division of property to be made. The question whether the various decisions recorded in Ex. 456A and in the books of account were required by law to be stamped need not be decided. The documents were admitted in evidence by the trial court and no question of admissibility of those documents can be raised at a later stage of the suit or in appeal." Although I have not agreed with the finding of the lower appellate court to the contrary on this point, my view is sufficient to support the conclusion arrived at by it that the plaintiffs were not entitled to re-open the partition of the houses and Sahan land etc. which had already been arrived at between them in the year 1952. which had already been arrived at between them in the year 1952. It is, therefore, not necessary to consider the point raised by the learned counsel that the lower appellate court was not justified in relying on the oral evidence for coming to that conclusion, nor the authorities cited by the learned counsel in that context. On the finding arrived at by me that the document Ex. A-13 is admissible in evidence and has been duly proved in accordance with law. the oral evidence only reinforces the inference that there was a duly completed partition of the house property between the three sons of Matadin Singh in the near 1952 and that the suit for partition of the same is not maintainable. Of course, the decree for partition of the Kulhara land of plot No. 182 having an area of 78 acres, based on the admission of the parties that land was not divided between the parties, is maintainable, and shall stand undisturbed. 10. In the result, the anneal fails and is dismissed with costs.