JUDGMENT : Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 4.3.2002 rendered by the Addl. District Judge, Sirmaur Distrct at Nahan in Civil Appeal No. 60-N/13 of 2001. 2. ?Key facts? necessary for the adjudication of this appeal are that predecessor-in-interest of respondents No.1-a to 1-g, Sh. Rehman Khan (hereinafter referred to as the ?plaintiff? for convenience sake) instituted a suit for partition against the predecessor-in-interest of the appellants i.e. defendant No.1 Mohd. Afzal, respondent-defendant No.2 Mohd. Aslam and respondent-defendant No.3 Sehnaz Begum. According to the plaintiff, property comprised in Khewat Khatauni No. 293 min/541, Khasra Nos. 129, 130, 132 to 135 and 3509/136 measuring 169-20 square meters situated in Amarpur Mohalla of Nahan Town, District Sirmaur is co-owned and jointly possessed by the parties. The same has not been partitioned so far. Plaintiff was working as Driver at Dharampur. When he came on 20.5.2000 to Nahan, he found that some pillars were raised on the valuable property abutting Nahan-Shimla road. These pillars were raised by defendant No.1 Mohd. Afzal. He prayed for preliminary decree of partition. 3. The suit was contested by defendants No.1 and 2. According to them, father of the plaintiff and defendants No.1 and 2, namely, Mohd. Afzal and Mohd. Aslam were coowners in the suit land as well as the property situated at Muhal Kacha Tank. On 26.3.1978, a family partition took place between the father of the plaintiff and defendants No.1 and 2. According to this document, defendants surrendered their shares in the property situated at Kacha Tank, Nahan in favour of the plaintiff and the contesting defendants were allotted the suit land and thereafter raised residential houses and shop over the suit land with the consent and knowledge of the father of the plaintiff. 4. Plaintiff filed replication. Issues were framed by the Senior Sub Judge on 13.7.2000. He dismissed the suit on 24.3.2001. Plaintiff filed an appeal before the Additional District Judge, Sirmaur. He decreed the suit on 4.3.2002. Hence, the present appeal. It was admitted on the following substantial questions of law: 1. ?Whether the suit property was settled earlier vide writing dated 26.3.1978 and whether this writing is not admissible in evidence for want of registration? 2. Plaintiff filed an appeal before the Additional District Judge, Sirmaur. He decreed the suit on 4.3.2002. Hence, the present appeal. It was admitted on the following substantial questions of law: 1. ?Whether the suit property was settled earlier vide writing dated 26.3.1978 and whether this writing is not admissible in evidence for want of registration? 2. Whether plaintiff is estopped from questioning earlier settlement, partition among defendants No.1, 2 and Iman Ulla father of the plaintiff in view of his acceptance of writing dated 26.3.1978 by way of his affidavit Ex.DA as well as his own conduct and conduct of his father Iman Ulla? 3. Whether the learned Additional District Judge has misconstrued, misinterpreted and misapplied the oral and documentary evidence on record in reversing the judgment, decree dated 24.3.2001 of learned Senior Sub Judge? 5. Appellant-defendant No.1 died during the pendency of this appeal and his legal heirs were brought on record vide order dated 4.9.2006. The legal heirs of respondent-plaintiff were also brought on record vide order dated 3.3.2014. 6. Mr. Karan Singh Kanwar, learned counsel for the appellant, has vehemently argued that writing dated 26.3.1978 was not required to be registered. He then contended that Ex.DA could not be ignored by the learned first appellate court. He lastly contended that the first appellate court has misread and mis-appreciated the oral as well as documentary evidence led by the parties. 7. I have heard the learned counsel for the parties and have gone through the records carefully. 8. Since all substantial questions of law are interlinked, they are being discussed together to avoid repetition of discussion of evidence. 9. Case of the appellant-defendants No.1 and 2, respectively is that the suit land was alongwith Kacha Tank property was partitioned between three brothers Mohd. Afzal-defendant No.1, Mohd. Aslam-defendant No.2 and Imanulla Khan, father of plaintiff, by way of family settlement on 26.3.1978. Admittedly, document dated 24.3.1978 has not been registered. The document, as per recital contained therein, is not a memorandum of partition. In fact, it is an instrument of partition. 10. Mr. Karan Singh Kanwar has also contended that mark =X' dated 26.3.1978 has been acted upon by the parties. However, there is no revenue entry in support of his contention. Admittedly, document dated 24.3.1978 has not been registered. The document, as per recital contained therein, is not a memorandum of partition. In fact, it is an instrument of partition. 10. Mr. Karan Singh Kanwar has also contended that mark =X' dated 26.3.1978 has been acted upon by the parties. However, there is no revenue entry in support of his contention. Fact of the matter is that even after the execution of this document, Kacha Johar property and some part of the suit land was jointly sold by the three brothers. PW-1 Rehman Khan has testified that the suit property was jointly sold by his father and defendants No.1 and 2. Similarly, Kacha Tank property was sold by them jointly and they received the money accordingly. Defendants in their statements have admitted that Kacha Johar property was jointly sold by the three brothers. DW-1 Mohd. Afzal, in his cross-examination, has admitted that after execution of mark =X', Kacha Johar property and some portion of the suit property was sold on 15.7.1987 and 15.10.1986. He has also admitted that sale proceeds of Kacha Johar property were received by the three brothers by way of cheques in presence of the Registrar. They have opened their accounts in the Punjab National Bank. In the Jamabandi for the year 1996-97 Ex.PA, the suit property is shown to be co-owned by the plaintiff's father Imanullah Khan, Mohd. Afzal-defendnat No.1 and Mohd. Aslam-defendnt No.2 in equal shares. The three brothers have received the money separately. Thus, mark =X' dated 26.3.1978 was never acted upon. 11. Mr. Karan Singh Kanwar has placed strong reliance on Ex. DA affidavit. This document was not attested. The document Ex.DA was scribed by DW-4 Fiaz Ali. Plaintiff has explained the manner in which he was made to sign Ex.DA when he was in dire need of money. 12. Mr. Karan Singh Kanwar has further argued that in fact the partition has taken place on 26.3.1978 and it is in these circumstances document Ex.DA was prepared. There is no mention in Ex.DA about the share of each of three co-sharers. The relinquishment made in para 6 of the Ex.DA is in the present form. Plaintiff has objected to the construction raised by defendants No.1 and 2. Plaintiff in his statement has deposed that he has raised objection as and when defendants raised the construction. There is no mention in Ex.DA about the share of each of three co-sharers. The relinquishment made in para 6 of the Ex.DA is in the present form. Plaintiff has objected to the construction raised by defendants No.1 and 2. Plaintiff in his statement has deposed that he has raised objection as and when defendants raised the construction. The document mark X' dated 26.3.1978 was required to be registered being an instrument of partition. Ex. DA affidavit has rightly been discarded by the learned first appellate court. 13. Their Lordships of the Hon'ble Supreme Court in Smt. Sudha Devi vs. M.P. Narayanan and others, AIR 1988 SC 1381 have held that affidavits are not included in the definition of evidence in section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under order XIX rule 1 or 2 of the Code of Civil Procedure. Their Lordships have held as under: ?4. The fact that the plaintiff obtained an ex parte decree in the earlier suit against the defendants Nos. 1 and 2 is established by the copy of the decree exhibited in the case. The allegation in the plaint so far as the third defendant is concerned, is in paragraph 7 in the following words: "7. Subsequent to the said Decree on a date or dates which the plaintiff is unable to specify until after disclosure by the defendants, the first and/or second defendants wrongfully permitted and allowed the third defendant to occupy the said demised flat. The first and/or second defendants by themselves and/or by the third defendant are still in wrongful possession of the said demised flat." The only evidence relevant to this part of the case is to be found in the oral evidence of the palintiff's sole witness Nand Kumar Tibrewal. The High Court (in appeal) has declined to rely on his evidence mainly on the ground that the witness has not disclosed his concern with the suit property or his relationship with the plaintiff. He has been rejected as incompetent. The learned counsel for the appellant contended that the witness (now deceased) was the husband of the plaintiff-appellant and thus he was fully conversant with the relevant facts. He has been rejected as incompetent. The learned counsel for the appellant contended that the witness (now deceased) was the husband of the plaintiff-appellant and thus he was fully conversant with the relevant facts. The criticism by the High Court that the witness did not state anything in his evidence which could connect him with the plaintiff or the property and thus make him competent was attempted to be met before us by relying on an affidavit filed in this Court. We are afraid, the plaintiff cannot be allowed to fill up the lacuna in the evidence belatedly at the Supreme Court stage. Besides, affidavits are not included in the definition of 'evidence' in S. 3 of the Evidence Act and can be used as evidence only it for sufficient reason court passes an order under O. XIX, Rule 1 or 2 of the Code of Civil Procedure. This part of the argument of Mr. Tapas Ray must, therefore, be rejected.? 14. Their Lordships of the Hon'ble Supreme Court in Roshan Singh and others vs. Zile Singh and others, AIR 1988 SC 881 have held that a partition may be effected orally, but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it is not registered, section 49 of the Act will prevent its being admitted in evidence. Their Lordships have held as under: ?9. It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under S. 17 (1) (b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well-settled that a mere list of properties allotted at a partition is not an instrument of partition and does, not require registration. Section 17 (1) (b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow : (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, S. 49 of the Act will prevent its being admitted in evidence. Secondly evidence of the factum of partition will not be admissible by reason of S. 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered to prove the fact of partition : See Mulla's, Registration Act, 8th Edn., pp. 54-57.? 15. In the case in hand, affidavit Ex.DA, was not even attested. 16. Learned First Appellate court has correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgment and decree passed by the first appellate court. 17. The substantial questions of law are answered accordingly. 18. In view of the analysis and discussion made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. Pending application (s), if any, also stands disposed of. There shall, however, be no order as to costs.