Judgment 1. The substantial question of law formulated and to be answered by this Court in defendants' second appeal is as under:- "Whether document Exhibit D-1 has been illegally discarded?" [For sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court]. 2. Sans unnecessary details, the facts which are essential to be stated for the purpose of disposal of the present second appeal are as under:- Plaintiffs case: 2.1 The original plaintiffs, namely, Brij Bhushan and Brijraj filed a suit for declaration of title and permanent injunction. The relief of declaration was sought to the effect that they are owners of the suit properties situated at village Rameshpur and Shankarpur, Tahsil, Ramanujganj, District Surguja, described in Schedule 'C' and 'D' annexed with the plaint and the mutation of the land in favour of the defendants be declared null and void. 2.2 It is the case of the plaintiffs that at the time of Surguja settlement, the property in question was originally settled in the name of their father and uncle, namely, Ramgarib Kalar and Ramadhin Kalar in the 1938-1945. It was specifically averred in the plaint that Ramgarib died in the year 1955 and Ramadhin died issueless in the year 1950. 2.3 The plaintiffs further pleaded that after the death of father and uncle, they become the sole owners of the property described in Schedule 'A' and 'B' annexed with the plaint. It was also averred in the plaint that father of defendants behind the back of the father of the plaintiffs and their uncle, got mutated their names in respect of 17.58 acres of the land of Schedule 'A' and father and uncle of the plaintiffs were not aware in respect of the mutation. 2.4 It was also averred that the land bearing Khasra No. 135, area 0.72 acres was originally settled in the name of father of the plaintiffs, but, subsequently, the father of defendants by playing fraud and in collusion with Patwari, got recorded his name in the revenue records. 2.4 It was also averred that the land bearing Khasra No. 135, area 0.72 acres was originally settled in the name of father of the plaintiffs, but, subsequently, the father of defendants by playing fraud and in collusion with Patwari, got recorded his name in the revenue records. 2.5 It was specifically averred in the plaint that the plaintiffs are in possession of all lands and they are cultivating the same, but on the revenue records, the father of defendants got recorded his name in respect of the said properties, and when they came to know in respect of the said fact, they filed a suit for declaration of their title and permanent injunction. Defendant's case : 2.6 The defendants filed their written statement and denied all the averments made in the plaint. It was alleged that on the date of settlement operations, Ramgarib and Ramadhin were the eldest members in their family, therefore, the patta-parcha was prepared in their joint names. 2.7 It was also alleged in the written statement that on 27/02/1942, family arrangement (Exhibit D-1) took place, according to which, the lands of Schedule 'C' of the plaint were given to the defendants. In this way, since the year 1942, the father of the defendants and thereafter, the defendants are enjoying the separate possession of the lands of Schedule 'C' and 'D' attached with the plaint. 2.8 It was specifically pleaded that according to the said family arrangement, mutation was affected on 11/01/1959 and these lands were recorded in the name of father of the defendants, namely, Shivshankar Prasad. This family arrangement was never challenged by the plaintiffs or their predecessors and the same became final and binding on all the parties. 2.9 Since the plaintiffs are challenging the aforesaid family arrangement of the year 1942 in the year 1985, therefore, the suit is barred by limitation. The defendants also pleaded that they are in peaceful possession of the lands of Schedule 'C' and 'D' of the plaint from the year 1942, and the revenue records also show their possession, which is unobstructed and open and in this manner. In fact, they pleaded that alternatively they have perfected their title by way of adverse possession, though the words like adverse possession has not been mentioned by them in their written statement. In fact, they pleaded that alternatively they have perfected their title by way of adverse possession, though the words like adverse possession has not been mentioned by them in their written statement. According to the written statement, the pedigree is as follows:- Ramfal (dead) Sitaram ( dead) Jharkhandi Pd. (dead) Shankar Pd. (dead) Mahabir Prasad ( dead) Madanlal . Dfd. no. 1 Ramlakhan Dfd. no. 2 Ramgarib (dead) Ramadhin (dead) Brijbhushan Plt. no. 1 Brijraj Plt. no. 2 Judgment and decree of the Trial Court 2.10 On the pleadings of the parties, ten issues were framed by the Trial Court and in support of their case; plaintiffs have examined three witnesses, whereas defendants have examined five witnesses. The findings of the Trial Court on all the issues are thus:- Øekad Okkn&iz’u fu”d”kZ 1- D;k ifj v] c] l] n dh Hkwfe oknhx.k ds firk o pkpk jkek/khu ds uke ls ljxqtk fj;klr dky es gh cUnkscLr gqbZ Fkh vkSj mUgh ds uke ls ipkZ iV~Vk cuk Fkk\ izekf.kr 2- D;k oknhx.k ,oa izfroknhx.k ds iwoZt lu~ 1942 es gh ikfjokfjd le>kSrk ds vuqlkj caVokjk djds i`Fkd~&i`Fkd~ gks x;s Fks\ Izkekf.kr ugh 3- D;k oknhx.k ,oa izfroknhx.k ,d gh oa’ko{k ls mRiUu Lkarku gS\ Izkekf.kr ugh 4- D;k izfroknhx.k ds firk us Ny cy ls oknhx.k ds firk o pkpk ds fcuk tkudkjh ifj ^^v^^ dh Hkwfe dk la’kks/ku vius uke ls djk fy;k gS\ izekf.kr 5- D;k oknhx.k dh izfroknhx.k }kjk xzke jes’kiqj ,oa ‘kadjiqj dh Hkwfe ds la’kks/ku ds lac/k es tkudkjh gS\ izekf.kr ugh 6- D;k oknHkwfe ifj ^^v^^ ,oa ^^c^^ dks iwoZ ls gh oknhx.k dk gh dCtk pyk vk jgk gS\ izekf.kr 7- D;k okn dk dkj.k lu~ 1985 es mRiUu gqvk Fkk\ izekf.kr 8- D;k okn dkyfrjksft gS\ izekf.kr 9- D;k oknhx.k us okn dk mfpr eqY;kadu dj i;kZIr U;k; ‘kqYd vnk ugh fd;k gS\ izekf.kr ugh 10- Lkgk;rk ,oa O;;\ Oknh dk nkok Lohd`r 2.11 The Trial Court by its judgment and decree dated 20/07/1998 decreed the suit of the plaintiffs declaring them the owners of the suit land and also declaring that the mutation effected on the name of the father of the defendants as illegal. Judgment and decree of the First Appellate Court: 2.12 On appeal preferred by the defendants under Section 96 of the Code of Civil Procedure, 1908 (in short 'the CPC'), the First Appellate Court by its impugned judgment and decree dated 25/08/2004, dismissed the appeal and upheld the judgment and decree passed by the Trial Court. 3. Questioning the legal acceptability and sustainability of the judgment and decree dated 25/08/2004 passed by Additional District Judge (F.T.C.), Ramanujganj, Surguja in Civil Appeal No. 90-A/2002, this second appeal has been filed by the appellant/defendants under Section 100 of the CPC, which has been admitted on substantial question of law formulated and recorded in the opening paragraph of this judgment. Submissions of the parties : 4. Mr. D.N. Prajapati, learned counsel appearing for the appellants/defendants would submit that both the Courts below have committed illegality in discarding the Exhibit D-1 by holding that Exhibit D-1 create rights in favour of the defendants, and it requires registration under the provisions of Registration Act, 1908 (in short "the Act, 1908"), therefore, the judgment and decree of both the Courts below deserves to be set-aside. 5. Combating the submissions made on behalf of the appellants/defendants, Mr. Manoj Paranjpe, learned counsel appearing for the respondent Nos. 1A (a, b & c) and 1-B & 1-C/plaintiffs would submit that the concurrent finding recorded by two Courts below holding Exhibit D-1 is inadmissible in evidence is a finding of fact based on evidence available on record. The substantial question of law formulated in this appeal does not arise for determination in this appeal and as such, appeal deserves to be dismissed. 6. I have heard and considered the arguments advanced by learned counsel for the parties and have also perused the records of both the Courts below with utmost circumspection. Answer to substantiation question of law : 7. The question that needs consideration is whether the Exhibit D-1 dated 27/02/1942 (Batwara-Nama) is rightly not acted upon by two Courts below holding that it is inadmissible in Evidence? 8. Answer to substantiation question of law : 7. The question that needs consideration is whether the Exhibit D-1 dated 27/02/1942 (Batwara-Nama) is rightly not acted upon by two Courts below holding that it is inadmissible in Evidence? 8. In order to answer the aforesaid issue, it would be profitable to note contains of Exhibit D-1 (Batawara-Nama), dated 27/02/1942, which reads as under:- CkaVokjk ukek ^^eu ds eS jke xjhc o jke v/khu tkfr dykj lkfdu jes’kiqj Fkkuk jedksyk rg] jkekuqtxat ftyk ljxqtk ds fuoklh gS pkpk ‘kadj izlkn oYn jkeQy tkfr dykj lkfdu jes’kiqj Fkkuk jedksyk rg] jkekuqtxat ft- ljxqtk dk fuoklh gSA pkpk ‘kadj izlkn ds fgLls o dCTks dh tehu gS tks ge yksxks ds iV~Vk o [kkrs dh fjdkMZ es gS lkfdu jes’kiqj o lkfdu ‘kadjiqj ds tehu es lkfed gS mls ge yksx vkt rkjh[k 27@2@42 bZLoh dks 51 lok ikap vkrk dk fgLLkk pkpk ‘kadj izlkn dks ns fn;s fgLls o dCts ds eqrkfcd viuk ljdkjh [kkrs o fjdkMZ es uke nqjLr djk dj fjdkMZ nq:Lr djk ysos bl caVokjk fy[kk i<+h es ges gekjs okfjlku dks fdlh izdkj dk brjkt ugh gksxk vxj fdlh izdkj dk brjkt djsaxs rks uktk;t le>k tk;sxk ;g fy[kk i<+h caVokjk ukek vius gks’k gok’k ls pUn xokgks ds lkeus fy[k fn;s dh lun jgs o oDr t:jh ij dke vkosA rkjh[k & 27@2@1942 bZLohA^^ 9. From a careful and close reading of the Exhibit D-1. (Batawara-Nama), it would appear that it has been executed by plaintiffs' father and his uncle, giving share of land in favour of the defendants' father, namely, Shankar Prasad by holding that the land held by them, Shankar Prasad had also a share and it further recites that as per share given to Shankar Prasad, he is at liberty to get his name mutated in the Revenue Records, which the defendant got his name recorded in the revenue record on 11/01/1959 after 17 years. Thus, it is a deed of partition by giving part of suit property in favour of the defendant's father, Shankar Prasad which he was entitled on partition and it virtually created right in favour of the defendant's father in the suit land and by virtue of said deed (Exhibit D-1), defendant's father got his name mutated in the Governmental and Revenue Records. 10. 10. Further, question to be considered is whether such a document (Exhibit D-1) creating right in favour of the defendant's father in the part of the suit land requires registration under the provisions of Act, 1908, for this, it would be profitable to have a look Section 17(1)(b) of the Registration Act, 1908, which reads as under:- "17. Documents of which registration is compulsory-(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877 or this Act came or comes into force, namely:- (a) **** (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immovable property;" 11. A close reading of the Section 17(1)(b) of the Act, 1908 leaves no manner of doubt that a document which purport or operate to create, any right, title or interest, in immovable property is required to be compulsorily registered by virtue of the aforesaid provision of the Act, 1908 and admittedly and undisputedly, the document (Exhibit D-1) is an unregistered document, is hit by Section 17(1)(b) of the Act, 1908. 12. Mr. Prajapati, would submit that this document (Exhibit D-1) is evidencing family arrangement already entered into between the parties, therefore, Section 17(1)(b) of the Act, 1908 would not be attracted and registration of said document was not compulsory. 13. As against this, Mr. Paranjpe would submit that Exhibit D-1 is an out and out partition deed clearly evidencing partition allegedly made creating right in favour of the defendants' father, and once, it is a deed of partition reduced into writing evidencing partition, it is compulsorily registrable under the provision of Section 17(1)(b) of the Act, 1908. 14. 13. As against this, Mr. Paranjpe would submit that Exhibit D-1 is an out and out partition deed clearly evidencing partition allegedly made creating right in favour of the defendants' father, and once, it is a deed of partition reduced into writing evidencing partition, it is compulsorily registrable under the provision of Section 17(1)(b) of the Act, 1908. 14. It is well settled law that when a deed reduced in writing evidencing partition, it would have the effect of declaring exclusive title to whom the property is allotted, it is required to be registered under Section 17(1)(b) of the Act, 1908, but if the terms of the family arrangement are only reduced in writing, it would be out-side the purview of Section 17(1)(b) of the Act, 1908. The law in this regard is well settled by the Supreme Court in case of Kale and others Vs. Deputy Director of Consolidation and others AIR 1976 SC 807 . Paragraph 10(4) of the report provides as under:- "10. * * * * (1) * * * * (2) * * * * (3) * * * * (4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2)(sic) (Sec. 17(1)(b)?) of the Registration Act and is, therefore, not compulsorily registrable;" 15. Recently, the Supreme Court in case of K.G. Shivalingappa (D) by L.Rs. and others Vs. G.S. Eswarappa and others AIR 2004 SC 4130 noticing the decision of Kale AIR 1976 SC 807 (supra), reiterated principle in this regard and held as under:- "13. Recently, the Supreme Court in case of K.G. Shivalingappa (D) by L.Rs. and others Vs. G.S. Eswarappa and others AIR 2004 SC 4130 noticing the decision of Kale AIR 1976 SC 807 (supra), reiterated principle in this regard and held as under:- "13. In Nani Bai v. Gita Bai Kom Rama Gunge ( AIR 1958 SC 706 ), it has been held by this Court that though partition amongst the Hindus may be effected orally but if the parties reduce it in writing to a formal document which is intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted in partition and thus the document would be required to be compulsorily registered under Section 17(1)(b) of the Registration Act. However, if the document did not evidence any partition by metes and bounds, it would be outside the purview of Section 17(1)(b) of the Indian Registration Act. This decision was followed in Shiromani and others v. Hem Kumar and others, AIR 1968 SC 1299 and Roshan Singh v. Zile Singh, AIR 1988 SC 881 . In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, 1996 (6) SCC 373 , after analyzing the judgments, referred to above, this Court observed: "Partition, specially among the coparceners, would be a "Transfer" for purposes of Registration Act 1908 or not has been considered in Nani Bai v. Gila Bai Kom Rama Gunge (supra) and it has been held that though a partition may be effected orally, if the parties reduce the transaction to a formal document which was intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted (by partition) and thus the document would fall within the mischief of Section 17(1)(b) of the Registration Act under which the document is compulsorily registerable. If, however, that document did not evidence any partition by metes and bounds, it would be outside the purview of that section." 16. Thus, I unhesitatingly hold that Exhibit D-1 partition deed is a document, which is evidencing and thereby creating right and declaring title in favour of the defendants/defendant's father is compulsorily registrable under Section 17(1)(b) of the Act, 1908. 17. Thus, I unhesitatingly hold that Exhibit D-1 partition deed is a document, which is evidencing and thereby creating right and declaring title in favour of the defendants/defendant's father is compulsorily registrable under Section 17(1)(b) of the Act, 1908. 17. Apart from this, the Trial Court as well as the First Appellate Court have also not acted upon the said document holding that execution of the said document has not been proved by the defendants, as defendant's own witness, namely-Jirjodhan (DW-4), in his deposition has failed to state the contents of Batwara-Nama (Exhibit D-1) and further failed to identify his own signature in Exhibit D-1, on the other hand, he has clearly stated that during the time of Surguja settlement, the plaintiff's father and defendant's father were separately settled. The aforesaid statement has been corroborated by defendant's another witness Lakhanlal (DW-3). 18. There is one more reason to disbelieve Exhibit D-1, the defendant in his written statement has stated that apart from Exhibit D-1, which has been partitioned, the property shown in schedule 'C' & 'D', was not subjected to partition though it is joint family property; It is common knowledge when a partition is made, all joint family properties are included in the partition. Defendants filed Exhibit D-1 evidences only the part of joint family property subjected to partition. Thus, the Trial Court as well as First Appellate Court taking into consideration that the Exhibit D-1 evidencing partition thereby creating right, title in favour of the defendants holding it inadmissible in evidence in the light of Section 17(1)(b) of the Act, 1908 coupled with the fact that mutation was made after 17 years, has not committed any illegality. 19. I do not find any illegality in the, concurrent finding recorded by both the Courts below holding that Exhibit D-1 is inadmissible in evidence and the defendants are not entitled for any right, title on the basis of Exhibit D-1. The concurrent finding recorded by both the Courts below are hereby affirmed. Thus, substantial question of law is answered accordingly against the appellants/defendants. 20. Mr. Prajapati placed reliance in cases of Smt. Gopabai Agrawal Vs. Goverdhandas Agrawal deceased through L.Rs. 2008(1) MPHT 340 , MB. Ramesh (dead) by L.Rs. Vs. K.M. Veeraje Urs (dead) by L.Rs. and others (2013) 7 SCC 490 and Hero Vinoth (minor) Vs. Thus, substantial question of law is answered accordingly against the appellants/defendants. 20. Mr. Prajapati placed reliance in cases of Smt. Gopabai Agrawal Vs. Goverdhandas Agrawal deceased through L.Rs. 2008(1) MPHT 340 , MB. Ramesh (dead) by L.Rs. Vs. K.M. Veeraje Urs (dead) by L.Rs. and others (2013) 7 SCC 490 and Hero Vinoth (minor) Vs. Seshammal, AIR 2006 SC 2234 which are clearly distinguishable to the facts of the instant case. Conclusion : 21. In view of the above-stated discussion, the second appeal deserves to be and is accordingly dismissed. Appellants/defendants to bear the cost of plaintiffs also. 22. A decree be drawn-up accordingly. Appeal Dismissed.