Punjab-Haryana High Court
Mukhtiar Singh vs Balwinder Singh And Another on 16 January, 2009
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.2528 of 2007(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.2528 of 2007(O&M)
Date of decision: 16.1.2009
Mukhtiar Singh ......Appellant
Versus
Balwinder Singh and another ......Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
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Present: Mr. M.K. Garg, Advocate for the appellant.
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Rakesh Kumar Garg, J.
This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby a preliminary decree of partition has been passed in favour of the plaintiff-respondents.
The plaintiff-respondents had filed a suit for partition of abadi site as detailed in the plaint and also for permanent injunction restraining the defendant-appellant from raising any construction on the vacant site during the pendency of the suit. It was alleged that Gurdial Singh, father of the plaintiffs was the real brother of the appellant and they had jointly purchased the house in dispute along with vacant site from its previous owners in equal share vide sale deed dated 1.7.1977 and the parties are in joint possession of the suit property. After the death of Gurdial Singh, the plaintiffs had become owner of the half share of the plot in dispute. Defendant is in possession of more than his existing share and is further threatening to construct on more land than his share. Therefore, there is a dispute between the parties. Hence, the suit.
Upon notice, the defendant-appellant filed written statement taking various legal objections therein. On merits, it was alleged that a family settlement took place between Gurdial Singh and defendant who were real brothers in which suit property fell to the share of the defendant RSA No.2528 of 2007(O&M) 2 and a writing to this effect was effected on 24.5.1996. Since then, the defendant-appellant is in possession of the house as owner. Rests of the allegations were denied. It was prayed that the suit be dismissed.
Both the parties led their respective evidence and the trial Court vide impugned judgment and decree dated 20.2.2006 passed a preliminary decree of partition of the suit property with costs and the defendant was restrained from raising any construction over the suit property till partition is effected.
Appeal filed by the defendant against the aforesaid judgment and decree of the trial Court was also dismissed by the Additional District Judge, Moga vide its judgment and decree dated 20.2.2007. While dismissing the appeal, the Lower Appellate Court observed as under:
"It is not disputed by any of the parties that parties to the suit are no co-sharer in the property in dispute. Memorandum of partition Ex.D1 is not operational because it is not registered nor it has been presented before any appropriate authority for its enforcement. Only oral partition is permissible and if partition is by written statement, it has to be got registered in the opinion of this Court. Agreement for family settlement Ex.D1 is only a paper transaction and has no bearing on merits of the Case. The learned trial Court had passed preliminary decree in suit for partition holding the plaintiffs to be co-sharers and no argument could have been addressed against any defect in the preliminary judgment and decree passed by the learned Court of first instance. Specific shares and other modalities regarding the manner of partition is to be decided in the RSA No.2528 of 2007(O&M) 3 proceedings when any of the co-sharers will file for seeking final decree of the partition. There is no scope of any interference into the verdict of the learned court of first instance."
Still not satisfied, the defendant has filed the instant appeal challenging the aforesaid judgment and decrees of the Courts below.
I have heard learned counsel for the appellant.
It is an admitted fact that father of the plaintiffs and the defendant-appellant had purchased the suit property vide sale deed dated 1.7.1977 in equal shares. The contention of the appellant is that a family settlement took place on 24.5.1996 vide Ex.D-1 and the house in dispute fell to the share of the appellant. The alleged family settlement Ex.D1 is not a registered document. A perusal of Ex.D1 further shows that this does not talk of any past transaction between the two parties on the basis of which the pre-existing right could be supposed between the parties. Thus, by the aforesaid family settlement a division of property between the two brothers has been alleged and a fresh right is alleged to have been created. Thus, the aforesaid document cannot be held to be a memorandum of family settlement and at the most it is a partition deed by which shares were divided by the owners. Thus, the document created fresh right between the parties which requires registration under Section 17 of the Registration Act. I am supported in my view by the judgment of this Court in Harpal Singh and others v. Mohinder Singh and others 2002 RCR (Civil) 756 (P&H).
No substantial question of law arises.
No merit. Dismissed.
January 16, 2009 (RAKESH KUMAR GARG)
ps JUDGE
RSA No.2528 of 2007(O&M) 4