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2003 DIGILAW 282 (PNJ)

Karam Singh v. Arjan Singh

2003-02-14

HEMANT GUPTA

body2003
Judgment Hemant Gupta, J. 1. This is the plaintiffs appeal arising out of suit for declaration to the effect that the plaintiff is owner in possession of the agricultural land measuring 20 kanals 16 marlas. 2. One Sawan Singh was owner of the land measuring 103 kanals, 18 marlas. Sawan Singh died. It is the case of the plaintiff that Sawan Singh was Karta of Joint Hindu Family. After the death of Sawan Singh, the land was partitioned and the memorandum of partition was scribed. The land measuring 20 kanals 16 marlas has fallen to the share of the. plaintiff-appellant. Here in possession of such land to the exclusion of all other defendants who are the other sons of Sawan Singh. It is also alleged that the defendant has paid a sum of Rs. 450/- to the plaintiff as price of the share of the plaintiff in the mango trees already cut and lying in the field. 3. In written statement, the defendant denied the memorandum of partition. It was also stated that the partition deed is the result of cheating and undue influence and defendants being illiterate had no knowledge of the same and, therefore, they are not bound by the writing. It is also stated that the deed of partition cannot be read in evidence being unregistered. Therefore, the suit land continues to be joint land of the parties. 4. Learned trial Court framed the following two issues:- 1. Whether the plaintiff is exclusive owner in possession over the suit land? OPP 2. Whether the plaintiff is entitled to the injunction prayed for? OPP. 3. Relief. 5. To prove such issues, the plaintiff himself has appeared as PW6 and produced Sukhdev Singh Bedi, Petition Writer, PW1, Teja Singh, PW2, Sardara Singh, PW3. Gurbachan Singh, PW4, Sadhu Singh, PW5. On the other hand, one of the defendants Arjan Singh has appeared as DW1. Learned trial Court after considering the testimony of the witnesses returned that the memorandum of partition deed was executed on 3.4.1978 as well as a sum of Rs. 450/- has been paid by the defendant and thus, the plaintiff is in possession of 20 Kanals and 16 marlas of land as owner thereof. However, the first appellate Court accepted the appeal of the defendant by a short judgment. 450/- has been paid by the defendant and thus, the plaintiff is in possession of 20 Kanals and 16 marlas of land as owner thereof. However, the first appellate Court accepted the appeal of the defendant by a short judgment. The entire judgment reads as under:- "The document on the record in support of the alleged partition is Ex.PI. It runs over three pages. The first two pages of the aforesaid writing do not bear the signature of Arjan Singh and the plaintiff or his witnesses have no explanation for the same. In this background, the version of Arjan Singh defendant that he was made to sign only the last page is nearer to truth. I have no hesitation in observing that the writing Ex.PI was inchoate document, which clothe the plaintiff with no rights." The perusal of the Jamabandi would show that the land in suit belonged to the parties jointly and was in their joint possession. As such trial Court went wrong when it decreed the suit and found the issues in favour of the plaintiffs. 6 The substantial question of law which arises in the present appeal is whether the finding recorded by the trial Court on me appreciation of evidence can be set aside by the First Appellate Court without discussing the evidence and only on one fact that the first two pages of the memorandum of partition has not been signed by the appellant? 7. Learned trial Court has relied upon the testimony of PW1 Sukhdev Singh, Scribe who has produced register dated 3.4.1978 wherein this memorandum of partition is entered. He has stated that he had read over the contents of the document after scribing the same and the witnesses have put their signatures and thumb impressions after acceding the same to be correct. The thumb impressions have been marked on his register as well. Teja Singh, PW2, Sardara Singh, PW3 and Gurbachan Singh, PW4 are the close relatives of both the parties who have corroborated the statement of the plaintiff and affirmed that the partition was made between the parties and possession of the suit land was delivered. They have also deposed that memorandum of partition Ex.PI was got scribed at Rajpura. The plaintiff himself has appeared as PW6 and deposed regarding the manner of partition and the fact that he had been paid a sum of Rs. They have also deposed that memorandum of partition Ex.PI was got scribed at Rajpura. The plaintiff himself has appeared as PW6 and deposed regarding the manner of partition and the fact that he had been paid a sum of Rs. 450/- in terms as settled towards price of the trees. On the other hand, it is Arjan Singh, defendant alone who appeared in witness box and stated that no partition was made. He denied his signatures on the same. However, he admits that he was asked to sign by stating that the partition was made. He has got field which gets irrigation water and he agreed in such partition. He further stated that there should be a fresh partition. In cross-examination, he admitted and identified his signatures on writing as Ex.P1. The fact that two pages of the document are signed by all other brothers except Sh. Arjan Singh whose signatures appeared on the last page. Simply because his signature are on the last page and not on first two pages are not sufficient that writing is inchoate. 8. A perusal of the document Ex.P1 shows that such document is signed by all the five brothers. However, only Arjan Singh has appeared in witness box who denied his signatures in cross-examination. His stand that he has not signed on the document is not believable when the signatures/thumb impressions are also in the Register of scribe. Near relations of parties have deposed regarding the partition. None of the other defendants have appeared in the witness box to deny such documents Ex.P1. Thus, it was not open to the First Appellate Court to hold that writing Ex.P1 was inchoate document which clothe the plaintiff with no rights only for the reasons that the first two pages of the document do not bear the signatures of Arjan Singh, plaintiff or his witnesses. Near relations of parties have deposed regarding the settlement. Therefore, the finding recorded by the First Appellate Court is erroneous. The First Appellate Court has not adverted to the finding recorded by the trial Court holding that the document stands executed. As a matter of fact, defendant Arjan Singh wanted to take benefits of absence of his signatures on the first two pages, although all other brothers have raised no dispute. 9. The First Appellate Court has not adverted to the finding recorded by the trial Court holding that the document stands executed. As a matter of fact, defendant Arjan Singh wanted to take benefits of absence of his signatures on the first two pages, although all other brothers have raised no dispute. 9. A perusal of the said memorandum of partition shows that not only the document itself has been styled as memorandum of partition but even the averments made therein shows that it records past transaction. In such document was not compulsory registered. In view of the above, the present appeal is allowed. The judgment and decree passed by the Appellate Court is set aside and the Judgment and decree passed by the learned trial Court in restored. No costs.