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2023 DIGILAW 79 (PNJ)

Balwant Singh v. Sita Devi

2023-01-06

LISA GILL

body2023
JUDGMENT Lisa Gill, J. Appellant-plaintiff has filed this regular second appeal challenging judgment and decree dated 29.08.1988 passed by the learned Sub Judge 1st Class, Charkhi Dadri whereby suit for declaration filed by the plaintiff has been dismissed as well as judgment and decree dated 15.02.1992 passed by learned Additional District Judge, Bhiwani whereby appeal filed by the appellant - plaintiff has been dismissed. 2. Brief facts necessary for adjudication of the matter are that appellant - plaintiff Balwant Singh filed a suit seeking declaration to the effect that he is owner in possession of the suit property as described in the plaint, with a further prayer that mutation No. 833 dated 25.07.1970, mutation No. 846 dated 20.09.1971 as well as order of Settlement Officer dated 29.09.1981 with regard to the partition of suit property alongwith mutation No. 1173 sanctioned on the basis of this order are illegal, null, void and not binding on the rights of the plaintiff. It is pleaded that Fakir Chand was the owner in possession of the suit property. He had three sons namely Rattan Singh, Sajjan Singh and Jawar Singh. Rattan Singh was issueless while Jawar Singh had four daughters and Sajjan Singh had six children i.e. three sons and three daughters including plaintiff. Pedigree table as available in the plaint is as under:- 3. It is pleaded that properties of the Joint Hindu Family situated at Bikaner, Kalyana and Dadri were partitioned before 1953 in a family partition while the property at village Kadma was joint. In respect to the property at village Kadma i.e. property in question, family partition/settlement, it is stated, was effected vide registered partition deed dated 03.10.1953. Mutation No. 371 was also sanctioned on the basis of this partition. Shares of the three brothers - Rattan Singh, Sajjan Singh, Jawar Singh as well as to Balwant Singh, Bhagwant Singh and Hari Kishan, the three sons of Sajjan Singh are detailed therein. Mutation in this regard, it is pleaded, was entered and sanctioned on 06.01.1954 but the said mutation was wrongly cancelled in the year 1974. It is stated that in the year 1956, Rattan Singh died and mutation of inheritance was entered and sanctioned in favour of Sajjan Singh and Jawar Singh on 14.10.1959. Sajjan Singh father of the plaintiff also died in the year 1971. It is stated that in the year 1956, Rattan Singh died and mutation of inheritance was entered and sanctioned in favour of Sajjan Singh and Jawar Singh on 14.10.1959. Sajjan Singh father of the plaintiff also died in the year 1971. Mutation of inheritance of the above said persons was entered and sanctioned on 25.07.1970 and 20.09.1971 respectively, which was claimed to be illegal, null, void and not binding on the rights of the parties in view of partition of property on 03.10.1953. It is stated that mutation No. 371 was wrongly cancelled and the Consolidation Officer passed order dated 29.06.1981 defining the shares of Sajjan Singh and Jawar Singh. Plaintiff filed an appeal challenging order of Consolidation Officer, which was dismissed by the Director Consolidation. Mutation No. 1173 dated 16.09.1981 was thereafter sanctioned. Plaintiff filed civil suit when the defendants purportedly refused to admit his claim. 4. Suit was contested by defendants No. 2 to 8 i.e. respondents No. 1 to 6 in this appeal. Other defendants were proceeded exparte. Factum of partition in 1953 was contested. Defendants denied that parties ever took possession of their respective shares in view of partition dated 05.10.1953. Partition, it is pleaded, was never acted upon and was infact cancelled on 16.07.1968. It is further stated that during consolidation proceedings in respect to the suit property, the same was partitioned and order was passed by the Consolidation Officer in this respect on 21.06.1981. Plaintiff preferred an appeal challenging order dated 21.06.1981, which was dismissed on 29.06.1982. Other objections regarding cause of action, locus standi etc. were also raised. Dismissal of the suit was prayed for. 5. Following issues were framed on the basis of the pleadings of the parties:- 1. Whether there had been a family partition dated 03.10.1953 among Rattan Singh, Jawar Singh, Sajjan Singh, Balwant Singh, Bhagwant Singh and Hari Kishan? OPP 2. Whether the parties to the partition deed dated 03.10.1953 become owners in possession of their respective shares since the date of deed till today? OPP 3. Whether the cancellation of the mutation No.371 dated 6.1.54 vide order dated 31.10.17 is illegal, against facts, null and void and as such not binding on the rights of the plaintiff and the proforma defendants? OPP. 4. OPP 3. Whether the cancellation of the mutation No.371 dated 6.1.54 vide order dated 31.10.17 is illegal, against facts, null and void and as such not binding on the rights of the plaintiff and the proforma defendants? OPP. 4. Whether the mutations No.833 attested on 25.7.70 and 846 attested on 20.9.71 are illegal, against facts and law and as such not binding on the rights of the plaintiff and the proforma defendants? OPP 5. Whether the order of Consolidation Officer, Ch.Dadri dated 29.6.81 order of Settlement officer, Bhiwant dated 29.6.82 and the mutation No.1173 attested 16.9.81 on the basis thereof are illegal, against facts and not binding on the rights of the plaintiff and proforma defendants? OPP. 6. Whether the pedigree table given in para No. 1 of the plaint is correct? OPP. 7. Whether the plaintiff has no locus standi to file this suit? OPD 8. Whether the plaintiff is estopped from filing the suit? OPD. 9. Whether the suit is time barred? OPD. 10. Whether the suit is bad for non-joinder of necessary parties and cause of action? OPD. 11. Whether the plaintiff has not prayed for consequential relief and as such the suit is not maintainable? OPD. 12. Whether the suit is false and frivolous and as such whether the defendants No. 2 to 8 are entitled for special costs? OPD. 13. Relief. 6. Following additional issue was also framed:- Whether this Court has no jurisdiction to try the present suit? OPD. 7. Parties led evidence to substantiate their respective claims, as is detailed in para Nos. 9 and 10 of judgment dated 29.08.1988 by the learned trial Court. Learned trial court on considering the evidence on record came to the conclusion that partition deed dated 03.10.1953 being a registered thirty years old document stands proved. It was held that cancellation of this document dated 03.10.1953 was duly carried out on 16.07.1968 (Ex.D1) and that this document of 1968 did not require compulsory registration. It was concluded that partition deed dated 03.10.1953 was only a memorandum prepared after the family settlement and no new rights had been created in any of the parties by virtue of this document, therefore, registration of the said deed was not compulsory. By the same analogy, the deed cancelling the same did not require registration either. It was further held that said document dated 03.10.1953 (Ex.P1) was never acted upon. By the same analogy, the deed cancelling the same did not require registration either. It was further held that said document dated 03.10.1953 (Ex.P1) was never acted upon. It was further observed that parties had duly given their consent for partition before the Director Consolidation, who passed order dated 17.05.1979 (Ex.D7) pursuant thereto. Plaintiff - Balwant Singh was proved to have appeared before the said authority through his Power of Attorney holder. Copy of Power of Attorney stood proved as Ex.PW3/A. Learned trial Court dismissed the suit vide impugned judgment dated 29.08.1988. Appeal filed by the plaintiff was also dismissed by the learned Additional District Judge, Bhiwani vide judgment and decree dated 15.02.1992. Aggrieved therefrom, present appeal has been filed. 8. Notice of motion was issued in this appeal on 01.09.1992 and the appeal admitted on 21.01.1993 with no interim order being passed. 9. Learned counsel for the appellant argued that both the learned courts below have grossly erred in passing judgments and decrees dated 29.08.1988 and 15.02.1992 and consequently dismissing the suit filed by the appellant - plaintiff. It is submitted that plaintiff led sufficient evidence on record to prove that partition carried out in October, 1953 was duly acted upon. There was no question of fraud and misrepresentation in this regard and that document Ex.P1 is duly proved on record and so held by both the learned courts below. It is further submitted that cancellation of partition deed of the year 1953 vide writing dated 16.07.1968 is absolutely illegal as cancellation could have been done or carried out only through registered document. Therefore, reliance on this document by both the learned courts below is not warranted. Document (Ex.D1) besides mutation dated 29.09.1981 by the Consolidation Officer are illegal, null, void and not binding on the rights of the plaintiff. It is submitted that following questions of law are involved for consideration in this case:- 1. Whether the learned courts below have misread the relevant evidence produced on record by the plaintiff to return incorrect findings against the plaintiff? 2. Whether the document/cancellation deed dated 16.07.1968 (Ex.D1) could be relied upon, not being a registered document, therefore, partition deed dated 03.10.1953 being a valid document would be effective? 10. Whether the learned courts below have misread the relevant evidence produced on record by the plaintiff to return incorrect findings against the plaintiff? 2. Whether the document/cancellation deed dated 16.07.1968 (Ex.D1) could be relied upon, not being a registered document, therefore, partition deed dated 03.10.1953 being a valid document would be effective? 10. It is, thus, prayed that this appeal be allowed, impugned judgments and decrees dated 29.08.1988 and 15.02.1992 passed by the learned Sub Judge 1st Class, Charkhi Dadri and learned Additional District Judge, Bhiwani, respectively be set aside and suit filed by the plaintiff - appellant be decreed as prayed for. 11. Learned counsel for respondent Nos. 11 to 13 while controverting the arguments raised by learned counsel for the appellant submits that both the learned courts below have passed well-reasoned and logical judgments after proper appreciation of evidence on record which calls for no interference. It is, thus, prayed that this appeal be dismissed. 12. Heard learned counsel for the parties and have perused the record. 13. Perusal of both the impugned judgments and decrees as well the record reveals that both the learned Courts below have correctly appreciated the evidence on record and rightly dismissed the suit filed by the plaintiff. This is so for the reasons as are discussed in the following paras. Insofar as partition deed dated 03.10.1953 (Ex.P1) is concerned, it is stated that partition of the land in question had taken place and parties had taken possession of their respective shares accordingly. The said document is clearly a memorandum of family settlement. In case, possession of the property had indeed been taken pursuant to this document, there would have been no question of devolution of the property as was done after the death of Rattan Singh in 1961 and of Sajjan Singh in 1968. It is further a matter of record that partition deed (Ex.P1) was never incorporated or reflected in any jamabandi prepared thereafter. Learned counsel for the appellant is unable to point out any evidence on record to indicate that partition deed dated 03.10.1953 was ever acted upon. Ex. P4 i.e. mutation dated 23.11.1964 which was sanctioned on the basis of document dated 03.10.1953 was duly cancelled on 17.10.1977. Learned Additional District Judge, Bhiwani has dealt with this aspect in great detail and observed as under:- "12. Ex. P4 i.e. mutation dated 23.11.1964 which was sanctioned on the basis of document dated 03.10.1953 was duly cancelled on 17.10.1977. Learned Additional District Judge, Bhiwani has dealt with this aspect in great detail and observed as under:- "12. Then I take up the second contention raised by the learned counsel for the appellant. The question is whether the partition of the year 1953 had or had not been acted upon. In this regard the following points may be taken into consideration for reaching a correct conclusion Ex.P.4 is the mutation of the earlier partition. On the back of it, it was recorded that the said partition on the basis of which this mutation was entered had never been acted upon and hence this mutation may be cancelled. This writing is dated 17.10.1977. This bears the signatures of Hari Kishan, brother of Balwant Singh. The Assistant Consolidation Officer had made this entry in 'Jalsai aam'. Hari Kishan would not have signed this document had it not been true, because this writing was against the interests of Hart Kishan himself. 13. Ex.P1 partition had never been incorporated in any Jamabandi prepared after the alleged partition. Had there been actual partition and had the parties intended to act upon it, this partition would have found place in the subsequent Jamabandis. 14. Rattan Singh had died in the year 1956. The mutation of inheritance was entered in the name of his two brothers and his land was conceded to be one-third share and not a share allotted to him according to Ex.Pl the partition deed of the year 1953. Had this partition been acted upon the share of Rattan Singh would not have been one-third in the suit land and would have been only that much which was allotted to him according to Ex.P1 and mutation of inheritance would have taken place in accordance with that share. 15. Then, Sajjan Singh died in the year 1968. The mutation of inheritance had been sanctioned only considering him to be the owner of one-half share of the total land and not in accordance with the share allotted to him as per Ex.Pl partition deed of the year 1953. That document Ex.P.l was ignored. This also shows that the partition of the year 1953 had not been acted upon. 16. That document Ex.P.l was ignored. This also shows that the partition of the year 1953 had not been acted upon. 16. Had the partition of the year 1953 been acted upon, the parties would have been recorded in possession of different shares. The plaintiff had not brought on any such evidence. His only statement is that the lands were under tenants and the division of the tenants was made. But he has not been able to tell who were those tenants who had fallen to his share. Also he has not been able to tell whether be was getting any batai etc. from those tenants. Then Ex.D-23 is the new partition. Now the parties are in possession according to this partition. It also shows that earlier partition had not been acted upon." 14. It is to be noted that plaintiff claimed to be in possession of the share as had fallen to him in partition in October, 1953 through tenants, however, no such evidence oral or documentary has been pointed out in this respect. Therefore, same is another circumstance to indicate that document dated 03.10.1953 was never acted upon. 15. Cancellation deed dated 16.07.1968 (Ex.D1) has been duly proved by the defendants. Plaintiff - Balwant Singh is reflected to be not only the party but also a signatory to this document. Though plaintiff denied his signatures on the document, defendants led positive evidence to prove that this document bears his signatures. Reference has been made to report Ex.DW6/A and statement of the Hand Writing and Finger Print Expert Mr.K.S. Puri, who has deposed as DW6. Argument addressed by learned counsel for the appellant - plaintiff that cancellation deed dated 16.07.1968 (Ex.D1) has not been proved on record and furthermore said document not being a registered document cannot be acted upon, is an argument devoid of any merit, hence rejected. It is a settled position of law that registration of family settlement where shares of the parties are merely defined and no new right is conferred upon the members, registration of said document is not required. Therefore, it has been correctly held by both the learned Courts below that non-registration of document Ex.D1, cancelling Ex.P1, cannot render Ex.D1 a nullity in the given factual matrix. Therefore, it has been correctly held by both the learned Courts below that non-registration of document Ex.D1, cancelling Ex.P1, cannot render Ex.D1 a nullity in the given factual matrix. There are in fact no substantial questions of law which arise for consideration in this case and questions of law sought to be raised by the appellant are answered against him in the given facts and circumstances as narrated in the foregoing paras. 16. Judgment and decree dated 29.08.1988 passed by the learned Sub Judge Ist Class, Charkhi Dadri as well as judgment and decree dated 15.02.1992 passed by learned Additional District Judge, Bhiwani are well reasoned and logical judgments passed on proper appreciation of evidence on record. Learned counsel for the appellant is unable to point out any illegality and infirmity in the impugned judgments and decrees dated 29.08.1988 and 15.02.1992, which calls for interference by this Court in the concurrent findings returned by both the learned Courts below. 17. No other argument has been addressed. 18. Appeal is, accordingly, dismissed with no order as to costs.