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2005 DIGILAW 1871 (RAJ)

Ram Swaroop v. Board of Revenue

2005-07-22

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-A revenue suit for declaration and division of holdings under Sections 88 and 53 of the Rajasthan Tenancy Act filed by the petitioner-plaintiff Ram Swaroop being Suit No. 57/1978 for different parcels of land situated in Chak 7 Deeplana, Chak 6 Deeplana and Chak 2 Deeplana was decreed by the Assistant Collector, Nohar on 02.02.1981 holding the plaintiff - Ram Swaroop to be entitled for 1/3rd share in the land in question. Appeal No. 24/1981 taken by the defendants Chandu Ram son of Malla and Bhoop Singh son of Chandu Ram was partly allowed by the Revenue Appellate Authority, Bikaner camp Sri Ganganagar on 12.09.1983 holding that so far the suit regarding the land of Chak 2 and 6 Deeplana was concerned, the same was barred by the principles of res judicata and the decree in respet of the land of Chak 7 Deeplana was maintained. Seond Appeal No. 324/83/LR/Ganganagar taken by the plaintiff Ram Swaroop to the Board of Revenue for Rajasthan, Ajmer was dismissed by the Division Bench of the Board of Revenue on 29.07.1991 affirming the Judgment and decree passed by the Revenue Appellate Authority. Being aggrieved by the Judgment and decree passed by the Board of Revenue dated 29.07.1991, the plaintiff-Ram Swaroop has submitted this writ petition. 2. The only ground on which the Revenue Appellate Authority has dismissed the suit in respect of the land of Chak 2 Deeplana and 6 Deeplana and the Board of Revenue has affirmed such dismissal, is that suit for declaration and division of holdings in respect of these lands was barred by the principles of res judicata for the issue having been heard and finally decided in a former suit No. 59/1963 : Moman vs. Malla & Ors., decided on 012.1965, by the Assistant Collector, Nohar and its appeal was dismissed by the Revenue Appellate Authority on 18.04.1968 and the dismissal was ultimately affirmed by the Revenue Board on 31.05.1972. In the present writ petition also, the petitioner has raised the only question that the present suit filed by the plaintiff-petitioner was not barred by res judicata because as regards the plaintiff , the issue was not heard and finally decided in the former suit. That being the only question involved, brief facts relevant thereto are summarised hereunder. 3. In the present writ petition also, the petitioner has raised the only question that the present suit filed by the plaintiff-petitioner was not barred by res judicata because as regards the plaintiff , the issue was not heard and finally decided in the former suit. That being the only question involved, brief facts relevant thereto are summarised hereunder. 3. The plaintiff Ram Swaroop son of Sampat filed the present suit for declaration and division of holdings on 14.03.1978 arraying Chandu Ram son of Malla, Bhoop Singh son of Chandu Ram as defendants No. 1 and 2; Gordhan, Ramdhan, Kashi Ram, Kheta Ram, Bhadar Singh and Mansukh sons of Jagram as defendants No. 3 to 8; Moman son of Mukhram as defendant No. 9; and the State of Rajasthan through the Tehsildar, Bhadra as defendant No. 10. The plaintiff gave out details of the land in question in the suit comprised in different chak numbers and murraba numbers. Suffice is to notice for identification of the land that the suit was filed in respect of three different parcels of land, namely, (i) 63bighas in Chak 7 Deeplana; (ii) 78 bighas in Chak 6 Deeplana; and (iii) 77 bighas in Chak 2 Deeplana, (for the sake of brevity hereinafter referred as to the land of 7 DPN, 6 DPN and 2 DPN respectively). In respect of this total land of 218 bighas, the plaintiff averred that this land was joint holding of (1) plaintiff , (2) Malla, father of defendants No. (1) and (3) Moman - defendant No. 9, each one of them having 1/3rd share in the same. Malla had expired and defendant No. 1 was his sole heir. It was alleged that out of the said land, Malla sold different pieces of land to defendants No. 3 to 8 in all measuring 31 bighas which were in their cultivatory possession. It was alleged that in the current Jamabandi of 2029 to 2038, defendants No. 1 and 2 illegally got entered the land of Chak 6 DPN in the name of defendants No. 1 and 2, of Chak 2 DPN in the name of defendant No. 1 and his father Malla and 31 bighas in the name of defendants No. 3 to 8 and this was asserted to be the cause of action for filing the suit. It was alleged that on the basis of erroneous entries in Jamabandi, defendants No. 1 and 2 were maintaining forcible possession on the land of Chak 2 and 6 DPN and were threatening to alienate the land which would cause irreparable injury to the plaintiff . The plaintiff submitted that he was entitled to get a declaration that in the land in question, himself , defendant No. 1 and defendant No. 9 were having 1/3rd share each. The defendants have refused to get the Jamabandi corrected and to divide the holdings, hence the suit was filed for declaration of 1/3rd share each as aforesaid of the three persons and for division of holdings in accordance with respective share and entitlement. 4. The defendants No. 1 and 2, Chandu Ram and Bhoop Singh, contested the suit so far the land of Chak 2 and 6 DPN was concerned and submitted that this land was the self acquired property of Malla (father of Chandu Ram) who had received the same after it was surrendered by one Sahi Ram for non-payment of the rent and the land was obtained by Malla by making payment of the remaining amount to the then Jagirdar and he became the exclusive khatedar tenant of the land in question comprised in these Chaks 2 DPN and 6 DPN. Malla has given 42 bighas of land to Bhoop Singh and the remaining land was in possession of the only son of Malla, namely, Chandu Ram. So far the land of Chak 7 DPN was concerned, it was admitted that this land was ancestral joint holding of Malla, Sampat (father of the plaintiff) and Moman and after the demise of Sampat, the plaintiff was having 1/3rd share and after the demise of Malla, defendant No. 1 was having 1/3rd share and remaining 1/3rd was of defendant Moman. Alienation of 31 bighas of land to the other defendants by Malla was admitted with the submissions that it was his self acquired property which has been alienated and was in cultivatory possession of the aliences. The rights asserted by the plaintiff in respect of land of Chaks 2 DPN and 6 DPN were denied in toto. Alienation of 31 bighas of land to the other defendants by Malla was admitted with the submissions that it was his self acquired property which has been alienated and was in cultivatory possession of the aliences. The rights asserted by the plaintiff in respect of land of Chaks 2 DPN and 6 DPN were denied in toto. In the additional pleas, the defendants reiterated the fact that land of Chaks 2 DPN and 6 DPN measuring 156 bighas was previously with one Sahi Ram Jat who surrendered the same and Malla deposited the dues and obtained the land from the then Thikana of Thirana and became khatedar tenant of the same and after his death, defendants No. 1 and 2 were cultivating the same and they were exclusive khatedars of this land in which Ram Swaroop and Moman have no right or share. 5. The plea of res judicata was raised with the averments that previously, defendant - Moman in collusion showing Ram Swaroop as proforma defendant filed a suit against Malla for division of holdings before the Sub-Divisional Officer, Nohar which was dismissed in the year 1965 and its appeal was also dismissed by the Revenue Board, Ajmer on 31.05.1972. The matter has been finally adjudicated between these parties and fresh suit for division of holdings for the land of Chaks 2 DPN and 6 DPN cannot proceed and the matter was barred by res judicata. The defendants pleaded thus:- Þ12- ;g fd ekseu izfroknh us jkeLo:i oknh dks Performa Defendants cukrs gq;s in collusion igys Hkh pUnw izfroknh ds firk Jh eykjke ds f[kykQ [kkrk rdlhe dk nkok S.D.O. Court. uksgj esa fd;k Fkk tks a [kkfjt gks x;k rFkk mldh vihy Hkh jktLo e.My vteslu~ 1965 esj easfnukad 31-05-1972 dks [kkfjt gks j ekeyk bUgha ikVhZpqdh vkSt ds chp eaas finally adjudicate gks pqdk gS vkSj nqckjk [kkrk rdlhe dk nkok vkjkth eqruktk okds pd 2 D.P.N. o 6 D.P.N. dk ugha py ldrk vkSj okn esa elyk Res judicata vkfjt gSAß 6. The defendants, therefore, prayed that suit in respect of land in Chaks 2 DPN and 6 DPN be dismissed and in respect of land in Chak 7 DPN be decreed for division of holdings for the shares of the respective parties. 7. The suit was put to trial after framing of the relevant issues. The defendants, therefore, prayed that suit in respect of land in Chaks 2 DPN and 6 DPN be dismissed and in respect of land in Chak 7 DPN be decreed for division of holdings for the shares of the respective parties. 7. The suit was put to trial after framing of the relevant issues. Issue No. 4 was framed on the question as to whether the suit was barred by principles of res judicata. After evidence of the parties. learned Assistant Collector, Nohar proceeded to decide the issues involved between the parties by the Judgment dated 02.02.1981. On the contentious issue on the question of res judicata, the learned Assistant Collector after examining the decision rendered by the Board of Revenue dated 31.05.1972 in the appeal arising from the previous suit filed by Moman concluded that the decision therein was binding only as against the interests of Moman who was the plaintiff in that suit and was not res judicata so far the plaintiff Ram Swaroop was concerned. The findings recorded by the learned Assistant Collector and the basis thereof shall be referred hereinafter. Suffice is to notice at this juncture that the issue of res judicata was decided against the defendants. Issue No. 3 regarding the plea of the defendants that Malla was having exclusive rights in the land of Chaks 2 DPN and 6 DPN after its surrender by Sahi Ram was also decided against the defendants for want of relevant evidence. Although the defendants attempted to rely upon the previous decision in the suit filed by Moman to contend that this aspect has also been decided earlier but the learned Assistant Collector was of opinion that in the said decision, Ram Swaroop did not get an opportunity of hearing and, therefore, he was not bound by the same and as Ram Swaroop was minor at the time of the said suit, he cannot be held bound by the same. The learned Assistant Collector decided relevant issues in favour of the plaintiff and held in respect of the entire land of Chaks 2, 6 and 7 DPN that the plaintiff was having 1/3rd share and Tehsildar was directed to make proposal for division of the land in 1/3rd portion each. The learned Assistant Collector decided relevant issues in favour of the plaintiff and held in respect of the entire land of Chaks 2, 6 and 7 DPN that the plaintiff was having 1/3rd share and Tehsildar was directed to make proposal for division of the land in 1/3rd portion each. However, it was ordered that as the matter was res judicata so far the defendant Moman was concerned in respect of Chaks 2 DPN and 6 DPN, hence his 1/3rd share in that land would remain with the other defendants. 8. The learned Revenue Appellate Authority in the appeal filed by defendants - Chandu Ram and Bhoop Singh did not agree with the findings of the trial Court and held that Ram Swaroop (present plaintiff) has filed in the former suit a written statement of admission in respect of claim as made by Moman Ram and the issue was directly involved amongst the parties whether the land of Chaks 2 and 6 DPN was of Malla alone. The learned Revenue Appellate Authority opined that the present plaintiff Ram Swaroop and Malla were co-defendants in the former suit and there was directly a dispute between them also about the status of the land of Chaks 2 and 6 DPN. It was wholly irrelevant whether Ram Swaroop contested the suit or not, because from his written statement of admission, it was apparent that he was aware of the dispute and the decision therein binds him also. The plea of Ram Swaroop being minor at the time of the suit was also not countenanced both on facts as well as in law. The learned Revenue Appellate Authority held the suit in respect of lands in Chaks 2 and 6 DPN to be barred by res judicata, ordered dismissal of the suit in respect of these two lands and maintained the decree in respect of the land of Chak 7 DPN. 9. The findings by the learned Revenue Appellate Authority were specifically affirmed by the learned Members of the Board of Revenue in Appeal No. 324/1983. The learned Members, inter alia, found that in the former suit also, one of the fundamental relevant question was as to whether the said land of Chaks 2 and 6 DPN was of Malla Ram alone and the decision in that respect would operate as res judicata in the present suit filed by Ram Swaroop. The learned Members, inter alia, found that in the former suit also, one of the fundamental relevant question was as to whether the said land of Chaks 2 and 6 DPN was of Malla Ram alone and the decision in that respect would operate as res judicata in the present suit filed by Ram Swaroop. The earlier decision was held conforming to all the requirements of Section 11 of the Code of Civil Procedure (CPC) and, therefore, the appeal was ordered to be dismissed. 10. The only contention put forward by the learned Counsel for the petitioner (plaintiff) in this writ petition assailing the Judgment and decree passed by the Board of Revenue and Revenue Appellate Authority has been that the earlier decision would not operate as res judicata so far the plaintiff Ram Swaroop is concerned because in the former suit, Malla (father of the defendant Chandu Ram) had not denied the share of Ram Swaroop but only denied the share of the then plaintiff Moman (present defendant No. 9) and it was alleged in that former suit that Moman Ram had relinquished his share in favour of Malla in lieu of Rs. 440/-and executed a document in his Bhai. No issue relating to present plaintiff Ram Swaroop was framed nor was put to trial nor was decided by the Courts in the previous suit. The said suit was decided on the basis of Moman admitting his signature on the relinquishment deed and there was no dispute between the present plaintiff Ram Swaroop and Malla who both were defendants in the said suit. No issue was framed with regard to rights of Malla vis-a-vis the petitioner Ram Swaroop and, therefore, there was no question of applicability of the principles of res judicata upon the claim of the plaintiff Ram Swaroop. According to the learned Counsel, the Judgment s delivered by the Revenue Appellate Authority and the Board of Revenue dated 12.09.1983 and 29.07.1991 respectively suffer from errors apparent on the face of record and, therefore, deserve to be set aside and the suit in its entirety deserves to be decreed. 11. According to the learned Counsel, the Judgment s delivered by the Revenue Appellate Authority and the Board of Revenue dated 12.09.1983 and 29.07.1991 respectively suffer from errors apparent on the face of record and, therefore, deserve to be set aside and the suit in its entirety deserves to be decreed. 11. Per contra, learned Counsel for the respondents has submitted that in the previous Suit No. 59/1963 which was filed by Moman for division of the same land, Ram Swaroop was a defendant and he specifically filed a written statement of admission in that suit whereas Malla claimed exclusive right over the land of Chaks 2 DPN and 6 DPN. On the basis of the pleadings of the parties, a specific issue was raised as to whether the land of Chak 2 DPN and 6 DPN belongs to Malla alone and that issue was specifically decided in favour of Malla and the same binds the present plaintiff Ram Swaroop as well. The findings in the former suit by the trial Court on 012.1965 have been affirmed by the Revenue Appellate Authority on 08.06.1968 and by the Board of Revenue on 31.05.1972 and thereafter this suit has been filed by the plaintiff Ram Swaroop in the month of March, 1978. Learned Counsel submitted that all the requirements for applicability of the principles of res judicata are directly available in the present case as the issue in question has already been decided between the same parties and it has been held that the land belongs only to Malla and now this issue cannot be re-agitated by Ram Swaroop who was a party to that former suit. Learned Counsel also submitted that in a partition suit, all the parties stand in the capacity of plaintiff and defendant as well. The present plaintiff Ram Swaroop was although a defendant in the former suit but in view of the nature of controversy and further in view of his filing a written statement of admission, he was standing at the same footing as the then plaintiff Moman and the entire decision binds him in toto. The present plaintiff Ram Swaroop was although a defendant in the former suit but in view of the nature of controversy and further in view of his filing a written statement of admission, he was standing at the same footing as the then plaintiff Moman and the entire decision binds him in toto. Learned Counsel submitted that even if Ram Swaroop be taken to be only a defendant in the former suit, then too, there was a direct conflict of interest between him and the other defendant Malla so far the land in question is concerned and whether he chose to contest the suit or not has hardly any bearing on the question as to whether the present claim is barred by res judicata or not. Learned Counsel for the respondents has referred to and relied upon the decision in Ishwardas vs. State of Madhya Pradesh & Ors., AIR 1979 SC 551 , Gangappa Gurupadappa Gugwad vs. Rachawwa, AIR 1971 SC 442 , Mahboob Sahab vs. Syed Ismail & Ors., AIR 1995 SC 1205 , Chandu Lal Agarwalla & Anr. vs. Khalilur Rahaman & Ors., AIR 1950 Privy Council 17, P.K. Vijayam vs. Kamalakshi Amma & Ors., AIR 1994 SC 2145 and Commissioner of Endowments vs. Vittal Rao & Ors., 2005 (4) SCC 120 . 12. It may be pointed out that in this writ petition, in view of the questions involved in the case, when the petition was taken up for the first time for admission on 210.1991, the learned Counsel for the petitioner was directed to produce the decision given in Moman Ram vs. Malla, by the Board of Revenue (i.e., the final decision in the former suit). A certified copy of the said Judgment by the Board of Revenue dated 31.05.1972 was filed by the Counsel for the petitioner on 12.1991. However, thereafter, on 112.1991 this Court also requisitioned the relevant records and the records of the present Suit No. 57/1978 and so also the record of the Board of Revenue of Appeal No. 143/1968 (from previous suit) and Appeal No. 324/1983 (from the present suit) have been received. 13. However, thereafter, on 112.1991 this Court also requisitioned the relevant records and the records of the present Suit No. 57/1978 and so also the record of the Board of Revenue of Appeal No. 143/1968 (from previous suit) and Appeal No. 324/1983 (from the present suit) have been received. 13. Having given a thoughtful consideration to the rival submissions and having scanned through the entire record of the present writ petition and so also the records aforesaid including the record of Appeal No. 143/1968 arising out of the previous suit, this Court is clearly of opinion that impugned Judgment s dated 12.09.1983 and 29.07.1991 passed by the Revenue Appellate Authority and the Board of Revenue respectively do not suffer from any error and do not call for any interference in this writ petition. The petition being wholly baseless deserves to be dismissed with costs. 14. It is not in dispute that in the present suit, plaintiff Ram Swaroop has sought a declaration of his being a joint khatedar in respect of the land of Chaks 2, 6 and 7 DPN with defendant Chandu Ram and defendant Moman, each having 1/3rd share. The family pedigree is also not in dispute which shows that contesting parties are descendants of common ancestor Tansukh who had two sons, (1) Sunder alias Sandal and (2) Mukhram. Sunder alias Sandal had two sons, Malla and Sampat. Defendant No. 1 Chandu is son of Malla, whereas, plaintiff Ram Swaroop is son of Sampat. The other son of Tansukh namely Mukhram had been shown to be having three sons, Moman, Ranjeet and Lalchand. Lalchand is asserted to have died and there is no reference of his branch anywhere. Ranjeet was alleged in the previous suit by Moman to have separated himself from the joint property long back and he was not joined as party to that suit and his non-joinder was also one of the reasons for dismissal of that suit. However, his name is not seen in relevant Jamabandis and no contention has been put by either of the parties in his respect in the present suit and hence not required to be considered for the purpose of present writ petition. However, the remaining son of Mukhram namely Moman is defendant No. 9 in the present case. 15. However, his name is not seen in relevant Jamabandis and no contention has been put by either of the parties in his respect in the present suit and hence not required to be considered for the purpose of present writ petition. However, the remaining son of Mukhram namely Moman is defendant No. 9 in the present case. 15. This very defendant No. 9 Moman earlier filed a suit for division of holdings arraying Malla and Ram Swaroop as defendants No. 1 and 2 and another person Phool Singh son of Chatar Singh as defendant No. 3 with State of Rajasthan as defendant No. 4. Proceedings against Phool Singh were later on dropped. A certified copy of the plaint filed in the previous suit has been produced on record in the present suit as Exhibit D. 1. The suit was filed on 30.05.1961 in which the plaintiff Moman claimed in respect of the same total 218 bighas of land of Chak 7 Deeplana, Chak 2 Deeplana and Chak 6 Deeplana that the plaintiff Moman, defendant Ram Swaroop and defendant Malla each was having 1/3rd share therein; then some alienations by Malla were put to question and it was claimed that the plaintiff wanted the holdings to be divided to get his 1/3rd share separated. The plaintiff prayed for the relief of separation of his 1/3rd share by way of partition. A written statement of admission of the entire plaint averments in toto was filed by Ram Swaroop who was the defendant in the said suit. A certified copy of this written statement has also been produced as Exhibit D. 2 in the present suit. The defendant Ram Swaroop submitted therein that Paras 1 to 6 of the plaint were entirely correct and were admitted. He further submitted that he has no objection if according to the plaint averments, the joint holdings were partitioned. A certified copy of the Judgment delivered by the Board of Revenue in Appeal No. 143/1968 which arose out of the said suit filed by Moman has also been produced on record by the defendant. The fact that earlier suit so filed and was dismissed upto the stage of the Board of Revenue has never been in dispute. The certified copy of the Judgment of the Board of Revenue has been referred as Exhibit D. 17 in the statement of Chandu Ram. DW.1. The fact that earlier suit so filed and was dismissed upto the stage of the Board of Revenue has never been in dispute. The certified copy of the Judgment of the Board of Revenue has been referred as Exhibit D. 17 in the statement of Chandu Ram. DW.1. However, as the said Judgment dated 31.05.1972 does not recite the exact issues framed in the said suit, it shall be worthwhile to refer to the certified copy of the Judgment dated 012.1965 which was delivered by the trial Court, SDO, Nohar in the suit from which the said appeal before the Board of Revenue arose after the first appeal was decided by the Revenue Appellate Authority. 16. From the Judgment dated 012.1965, it is found that apart from the issue of relief, five issues were framed by the trial Court on the questions, as to whether the plaintiff (Moman) was entitled to have the land of 218 bighas in Chaks 7, 2 and 6 Deeplana partitioned; as to whether the plaintiff has already separated from defendant Malla and executed the document in his Bahi, therefore, he was not entitled to maintain the suit; as to whether suit was within limitation; as to whether the suit was suffering from non-joinder of parties; and as to whether the land of about 156 bighas 15 biswas was self acquired property of Malla in which the plaintiff had no right? It seems that the suit was earlier decreed on 19.06.1962 but the decree was set aside and the matter was remanded by the Revenue Appellate Authority and the issue No. 4 regarding non-joinder of parties was amended to the effect as to whether Ranjeet was a necessary party to the suit and it was also directed that status of the land and entitlement thereto be decided after giving an opportunity of evidence to the defendant. In accordance with these directions, the evidence was recorded and thereafter the trial Court decided the issues afresh delivering the Judgment on 012.1965. Regarding issue No. 2 of the plaintiff having executed a document in the Bahi of the defendant, the finding was recorded in favour of the defendant. Rajneet was held to be a necessary party to the suit as the plaintiff failed to show as to what share he received in the land and, therefore, this issue was also decided against the plaintiff . Rajneet was held to be a necessary party to the suit as the plaintiff failed to show as to what share he received in the land and, therefore, this issue was also decided against the plaintiff . Issue No. 5 regarding surrender of the aforesaid 156 bighas land by Sahi Ram and obtaining of the same by defendant Malla was also specifically decided in favour of the defendant and it was held that the disputed land was obtained by Malla - defendant from Thikana Thirana in which the plaintiff had no right. In view of the findings aforesaid, the suit was ordered to be dismissed. For continuity of narration, it may also be noticed that Appeal No. 8/66 was taken by the plaintiff Moman before the Revenue Appellate Authority against the said Judgment and decree dated 012.1965 and this appeal was dismissed by the Revenue Appellate Authority, Bikaner on 18.04.1968. All the findings of the trial Court were affirmed by the Revenue Appellate Authority and it was held that issue No. 5 had rightly been decided in favour of the defendant, as it was proved that defendant Malla alone has taken the said land of about 156 bighas from Thikana Thirana. After the aforesaid two decisions, second appeal before the Board of Revenue too was dismissed on 31.05.1972 and this is subject matter of consideration as to whether the findigns therein operate as res judicata or not? 17. In the Judgment dated 31.05.1972, the learned Members of the Board firstly affirmed the finding on the re-cast issue No. 4 with the observation that it was plaintiff s duty to have made all the alive successors necessary parties to the suit. The learned Members of the Board thereafter observed that not much evidence was produced by the plaintiff before the trial Court support of his suit but he admitted his signature on the document (Bhai) Exhibit D. 1 and upon reading of the said document and appreciating the evidence produced by the parties, the learned Members found that defendant successfully rebutted the presumption available for the record of rights and was able to establish that mutual partition of the land had been effected by an agreement between the two contesting parties by mutual drawn agreement in the family Bhai. The learned Members referred to Section 53 of the Rajasthan Tenancy Act which envisages division of agriculture holdings in two manners, namely, by agreement between co-tenants or by a decree or order of competent Court, and held,:- "In the instant case the division of joint holding has been effected by an agreement between the appellant (plaintiff) and the respondent No. 1 (defendant) by a mutual drawn document in the family Bhai which is in the possession of respondent No. 1." 18. The learned Member also referred to the fact that although this entry in the Bhai was not dated and want of execution date would have been fatal but for the admission of the plaintiff himself that such a private partition had taken place, the learned Members found that there was no reason to doubt the veracity of this document Exhibit D. 1 and the appreciation of evidence by the two Courts below was held to be correct. The objection regarding want of registration of this kind of partition was also not countenanced on the consideration that it was a family settlement and binding on the parties and even unregistered partition deed could be looked into for the terms of partition and establishing severance of status. Thereafter, the learned Members specifically referred to the other aspect of the matter that this about 156 bighas and 15 biswas of land was acquired by Malla alone. While discussing the evidence, it was held,:- "We further find that the respondent No. 1 has successfully proved in the trial Court that Sahi Ram had 291 bighas 12 biswas land in village Marwana from the then Jagirdar. He kept 134 bighas 17 biswas land for his cultivation and surrendered 156 bighas 15 biswas land. He wrote out a surrender document (Exhibit D./2). This surrender was accepted by Chandra Singh Kamdar of the Thikana as recorded in the back of surrender document marked Exhibit D. 2. Chandra Singh was kamdar in the Thikana Thirana in which village Marwana is situated at that time and he has testified to Exhibit D/2 document as well as rent receipts marked Exhibit D./3 to Exhibit D/5 which go to prove that respondent No. 1 used to pay rent for the land surrendered by Sahi Ram. Chandra Singh was kamdar in the Thikana Thirana in which village Marwana is situated at that time and he has testified to Exhibit D/2 document as well as rent receipts marked Exhibit D./3 to Exhibit D/5 which go to prove that respondent No. 1 used to pay rent for the land surrendered by Sahi Ram. This land was given by the Thikana to Malla respondent No.1 after surrender as the entries on the back of the surrender deed clearly prove as well as the statement of Chandra Singh DW. 5. This land could not be mixed up with the suit land sought to be partitioned. The plaintiff has failed to prove in both the lower Courts that the land surrendered by Sahiram which was allowed to him by Thikana Thirana was not separate from any other joint land held by the two contesting parties." 19. The conclusions by the Courts below were held to be not calling for any interference and accordingly, the appeal was dismissed. 20. It would be useful to recapitulate that Ram Swaroop plaintiff was a defendant in that very suit wherein division of holdings was claimed and he specifically filed written statement of admission of the entire plaint averments and placed himself for all practical purposes at par with the plaintiff . It was the defendant Malla alone who contested the suit, inter alia, on the grounds that Moman had already signed the family Bahi for division of holdings, and that the land of about 156 bighas was the self acquired property of Malla and was not joint property. All the three Courts have recorded findings on these material issues against the plaintiff Moman and in favour of the defendant Malla. It would also be useful to notice that although it has been sought to be asserted that Ram Swaroop did not join the issues in the earlier suit and the dispute was only between Moman and Malla and any decision therein would not bind him, but the fact remains that Ram Swaroop filed a written statement of admission and claimed that he had no objection if the joint holdings as described in the plaint be partitioned. He, therefore, obviously claimed that the entire holding of Chaks 2, 6 and 7 D