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2000 DIGILAW 742 (PNJ)

Baboo Singh v. Natha Singh

2000-07-14

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This is a civil revision and has been directed against the order dated 21.4.2000 passed by Additional District Judge, Kurukshetra, who dismissed the appeal of the plaintiff-petitioners under Order 43 C.P.C. by affirming the order dated 17.1.1998 passed by Additional Civil Judge (Senior Division), Kurukshetra, who also dismissed the application of the petitioners under Order 39 Rules 1 and 2 C.P.C. The reasons for the dismissal of the appeal are contained in paras 11 to 13 of the impugned order dated 21.4.2000 which read as follows :- "11. The partition of the properties detailed in para No. 2 of the plaint was allegedly effected vide document dated 5.6.1990. This document was not registered and as such the same could not be read in evidence. I dont agree with the contention of learned counsel for the appellants that the document dated 5.6.1990 was acted upon by the parties as the parties had taken possession of the properties which had allegedly fallen to their shares. I also do not agree with the contention of the learned counsel for the appellants that this document did not require registration as the parties were having pre-existing rights in the property detailed in para No. 2 of the plaint, and no new rights of any party was created in the said property, vide document dated 5.6.1990. The authorities 1979 Current Law Journal (Civil) 374, 1984 HRR 152, AIR 1979 Andhra Pradesh 275, AIR 1956 Saurashtra 89, AIR 1975 Supreme Court 1119, AIR 1966 Supreme Court 1836, 1997(2) PLR 205 and AIR 1988 Supreme Court 881, referred to above by learned counsel for the appellants do not seem to be of any help to them in the light of the facts of the present case. 12. I find no force in the contention raised by learned counsel for the appellants that in view of the facts of this case, the partition which was allegedly effected vide document dated 5.6.1990 was not required to be brought to the notice of revenue authority. There was a cutting in the first line on page No. 3 of the document dated 5.6.1990. It was signed by all the persons who were parties to the execution of this document except the defendants. Because of this reason also, the plaintiff-appellants could not take any help from this document to prove the partition of the properties in dispute. 13. It was signed by all the persons who were parties to the execution of this document except the defendants. Because of this reason also, the plaintiff-appellants could not take any help from this document to prove the partition of the properties in dispute. 13. The alleged family partition could become valid only if the same was brought to the notice of the revenue authorities. In the present case, the joint khata was not divided by metes and bounds. Thus, in my opinion the parties continued to be co-sharers of the properties detailed in para No. 2 of the plaint. In support of this view, I have drawn support from 1983 PLJ 429, the authority referred to by the learned counsel for the respondents. I am, of the view that the alleged private partition whcih was allegedly affected vide document dated 5.6.1990 at the most could be said to be an arrangement of the parties for separate cultivation. In support of this view, I draw support from 1999 PLJ 69, the authority referred to by learned counsel for the respondents. Moreover, even if the document dated 5.6.1990 was read in evidence, the same was of no help to the plaintiffs to prove the partition of the properties detailed in para No. 2 of the plaint, as in this document, the specific killa Nos. which had allegedly fallen to the shares of the plaintiffs and the defendants have not been mentioned. As such, this document was of no help of the plaintiffs/appellants to prove that the properties were partitioned between the parties. In the revenue record, the defendants were shown to be joint owners to the extent of 1/3rd share of the properties in dispute. Thus, the defendants being co-sharers to the extent of 1/3rd share were entitled to mortgage 1/3rd share of the suit property and the plaintiffs were having no right to restrain them from doing so. In my opinion, the plaintiffs were having prima facie case. The balance of convenience was also not in their favour. No irreparable loss shall be suffered by them in case the present appeal was not allowed. I find no illegality in the impugned order passed by the learned trial Court. I dismiss the present appeal. The parties are directed to appear in the trial Court on 2.5.2000. The balance of convenience was also not in their favour. No irreparable loss shall be suffered by them in case the present appeal was not allowed. I find no illegality in the impugned order passed by the learned trial Court. I dismiss the present appeal. The parties are directed to appear in the trial Court on 2.5.2000. The trial Court record along with a copy of this judgment be sent back and the appeal file be consigned to the record room. 2. I have heard Mr. B.R. Vohra, Advocate on behalf of the petitioners, who relies upon Mohan Singh v. Lachhman Singh, 1992 P.L.J. 403 and submits that it is too early to say that the document dated 5.6.1990 cannot be acted upon. Even if it is assumed for the sake of argument that the document dated 5.6.1990 is unregistered and not properly stamped, still it can be looked into for collateral purpose. According to the petitioners the partition has been given effect between the parties to the document and, therefore, the registration or non-registration has no meaning and in these circumstances the alienation may be stayed. 3. I do not subscribe to the arguments raised by the learned counsel for the petitioners. Prima facie, the document dated 5.6.1990 is neither registered nor properly stamped and, therefore, it cannot be looked into for any purpose. The reasons given by the first Appellate Court, as quoted above, are valid and sound. There is no illegality in the impugned order. 4. No merit. Dismissed. Revision dismissed.