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2023 DIGILAW 254 (MP)

Khilan Singh v. Roop Singh

2023-02-10

G.S.AHLUWALIA

body2023
JUDGMENT 1. This second appeal, under section 100 of CPC, has been filed against the judgment and decree dated 22.11.2018 passed by Second Additional District Judge, Bina, District Sagar in RCA No.21A/2014, arising out of the judgment and decree dated 31.10.2012 passed by Civil Judge, Class-I, Bina District Sagar in Civil Suit No.69A/2008. 2. The appellant is the plaintiff, who has lost his case from both the Courts below. The appellant filed a suit for declaration of title and permanent injunction on the ground that the defendants are children as well as widow of Late Surat Singh Kurmi, who is the real brother of the plaintiff. The plaintiff and late Surat Singh are the sons of Late Brijlal Kurmi and accordingly they are entitled to inherit his property. Surat Singh had expired about 8 to 10 years prior to the institution of civil suit. On 9.5.1971 a family partition had taken place between him and Surat Singh and a memorandum of partition was prepared and accordingly the plaintiff and Surat Singh got possession of their respective shares. The land, which went to the share of the plaintiff, is mentioned in Paragraph 4 of the plaint and land, which went to the share of Surat Singh, is mentioned in Paragraph 5 of the plaint. It was claimed that after the partition separate Bhu adhikar Avam Rin Pustika were prepared and revenue entries were made. On the basis of their individual Rin Pustikas, the plaintiff and Late Surat Singh obtained loan for agricultural purposes etc. In the year 1988, Bhangarh Khimlasa Road came into existence, as a result, the land which came to the share of the plaintiff became valuable as most of the land was situated by the side of a newly constructed road. It was claimed that for the said reason, the defendants are now disputing the genuine partition, which had taken place in the year 1971 and now demanding half share in each agricultural field. It was claimed that the partition has already been taken place between Surat Singh and his brother about 30 years back and accordingly the suit was filed for declaration of title and permanent injunction. 3. The defendants filed their written statement and denied that any partition had taken place on 9.5.1971 during the lifetime of Surat Singh. It was claimed that the family partition, relied upon by the plaintiff, is a forged document. 3. The defendants filed their written statement and denied that any partition had taken place on 9.5.1971 during the lifetime of Surat Singh. It was claimed that the family partition, relied upon by the plaintiff, is a forged document. The SDO by his order dated 18.3.2005 has directed for partition of the land and the said order is correct. 4. Thus the only question of dispute between the parties is that whether any partition had taken place between the parties on 9.5.1971 or not ? 5. The trial court, after framing issues and recording evidence, dismissed the suit filed by the appellant. 6. Being aggrieved by the judgment and decree passed by the trial court, the appellant preferred an appeal, which too has been dismissed by the First Appellate Court by the impugned order. 7. Challenging the judgments and decrees passed by the Courts below, it is submitted by the counsel for the appellant that the family partition (Ex.P.5) is not a partition deed but it is a memorandum of partition, therefore, it was not required to be registered. Even otherwise, the said document can be read for collateral purposes and accordingly has proposed the following substantial questions of law:- “A. Whether from the statement of P.W.3 Ramgopal the execution, attestation and contents of the Fard Batwara Ex.P.5 have legally been proved as required under the provisions of Indian Evidence Act illegally held to the contrary by the Courts below? B. Whether the course adopted by the Courts below of themselves comparing the signatures of attesting witnesses and Surat Singh on Fard Batwara Ex.P.5 with other documents on record is wholly illegal and they ought to have called for a report of a handwriting expert in that regard even in absence of filing of any application for that purpose by the parties? C. Whether, the Lower Appellate Court has committed a gross error of law in not taking into consideration the documents filed by plaintiff along with his application under Order 41 rule 27 of the Code of Civil Procedure though the application had already been allowed by it? D. Whether the plaintiff has satisfactorily proved the legality of Fard Batwara Ex.P.5 by way of the evidence brought by him on record which has however been negatived by the Courts below on wholly irrelevant and extrenaeous considerations? D. Whether the plaintiff has satisfactorily proved the legality of Fard Batwara Ex.P.5 by way of the evidence brought by him on record which has however been negatived by the Courts below on wholly irrelevant and extrenaeous considerations? E(i) Whether the Fard Batwara Ex.P.5 is not a partition deed but is merely a memorandum of oral partition having earlier been effected between the parties hence was not compulsorily required to be registered under the provisions of Indian Registration Act hence was admissible in evidence? (ii) Whether, in any case, even if the same was compulsorily required to be registered, the same could not have been excluded from consideration all together and should have been looked into for collateral purposes as provided under proviso to section 49 of Indian Registration Act? F. Whether in view of defence plea itself of being separate in food, mess and cultivation of the suit lands it should have been held that this was under a family arrangement which has taken the shape of partition having been effected between the parties? G. Whether in view of the suit lands being joint family lands of the parties, even if partition as set up by plaintiff was not upheld, then also his relief for partiton and delivery of separate possession of his share in the suit lands ought to have been decreed in view of admitted position between the parties of the suit lands being joint family lands.” 8. Heard the learned counsel for the appellant. 9. It is submitted by the counsel for the appellants that she would propose substantial question of law no.”E” only. 10. The first question for consideration is as to whether the partition deed (Ex.P.5) is a partition deed requiring registration or it is a memorandum of partition? This Court has gone through the unregistered partition deed (Ex.P.5). From the plain reading of this document, it is clear that by no stretch of imagination, it can be treated as a memorandum of partition. In fact by this document, the properties were allegedly partitioned; therefore, it was necessarily registrable under section 17 of Registration Act. 11. Furthermore, Khilan Singh (P.W.1) has claimed that in the morning an oral partition took place, which was reduced in writing on the same day. In fact by this document, the properties were allegedly partitioned; therefore, it was necessarily registrable under section 17 of Registration Act. 11. Furthermore, Khilan Singh (P.W.1) has claimed that in the morning an oral partition took place, which was reduced in writing on the same day. However, he could not explain as to why the factum of oral partition in the early part of the day is not mentioned in the unregistered partition deed (Ex.P.5). No date is mentioned on the unregistered partition deed (Ex.P.5). Even the witnesses could not clarify the date on which the partition deed was executed but on the contrary, they were all the time claiming that the partition has taken place about 35-36 years back. Both the Courts below have held that the partition deed (Ex.P.5) is not a memorandum of partition but it is a partition deed requiring registration. This Court has also gone through the same and does not find any infirmity in the appreciation of documents done by the Courts below. 12. It is next contended by the counsel for the appellant that even if it is presumed that the partition deed (Ex.P.5) is not admissible for want of registration, still the same can be seen for collateral purpose. 13. Considered the submissions made by the counsel for the appellant. 14. The creation of right or title in a property cannot be said to be collateral purpose. Therefore, it is necessary to find out the basic meaning of collateral purposes. 15. It is submitted by the counsel for the appellant that in the case of Permanand v. Laxminarain, reported in AIR 1955 MB 129 , it has been held that an unregistered partition deed can be relied upon to prove the fact of partition. 16. The Madras High Court in the case of C.S.Kumaraswami Gounder v. Aravagiri Gounder and Another, reported in AIR 1974 Mad 239 has held that the document can be used for showing collateral purpose or a purpose collateral to the principal transaction. 17. In the case of Mallappa durgappa Mayannavar and others v. Durgavva and others, reported in AIR 1982 Karnataka 214 it has been held that the document covering both severance of status and partition by metes and bounds, is admissible in evidence for the purpose of showing that there was a severance of status and the family no longer remained an undivided family or coparcenary. 18. 18. In the case of Chinnappareddigari Peda Mutyala Reddy v. Chinnappareddigari Venkata Reddy and others, reported in AIR 1969 AP 242 it has been held that although the partition deed may not be admissible in evidence for want of registration but can be looked into for establishing severance in status and oral evidence is admissible to prove factum of partition, though not admissible to prove terms of partition. 19. In the case of Ruckmangathan v. Ramalingam, reported in 1997 SCC Online Madras 497 it has been held that the collateral purposes means disruption of status, division of property and separate possession. 20. Thus the next question for consideration is as to whether the plaintiff has successfully established the severance of status and delivery of possession or not ? 21. Khilan Singh (P.W.1) has stated that the lands were separated only after the order of Tahsildar was passed. He further stated that he had not challenged the order passed by the SDO but claimed that he directly filed this civil suit. He further admitted that as per the partition deed (Ex.P.5), he did not take any action in the revenue court. 22. Gauri Shankar (P.W.4) has stated that no possession was separated by the Patwari by metes and bounds. 23. Ram Gopal (P.W.3), who was examined for identification of signatures and handwriting of scribe Khemchand, has stated that he was never informed by his father that which property was partitioned. He further admitted that Surat Singh and Khilan Singh had not signed the partition deed (Ex.P.5) in his presence. 24. Thus, it is clear that the plaintiff has failed to prove that there was an actual severance of status and partition by metes and bounds after the so-called partition deed (Ex.P.5) was written. Therefore, it is clear that even for the collateral purpose, the plaintiff has failed to prove that unregistered partition deed (Ex.P.5) was ever executed by the parties. 25. No other argument is advanced by the counsel for the appellant. 26. Under these circumstances, this Court is of the considered opinion that no substantial question of law arises in the present case. 27. Ex consequenti, the judgment and decree dated 22.11.2018 passed by Second Additional District Judge, Bina, District Sagar in RCA No.21A/2014 and the judgment and decree dated 31.10.2012 passed by Civil Judge, Class-I, Bina District Sagar in Civil Suit No.69A/2008 are hereby affirmed. 28. 27. Ex consequenti, the judgment and decree dated 22.11.2018 passed by Second Additional District Judge, Bina, District Sagar in RCA No.21A/2014 and the judgment and decree dated 31.10.2012 passed by Civil Judge, Class-I, Bina District Sagar in Civil Suit No.69A/2008 are hereby affirmed. 28. The appeal fails and is hereby dismissed.