Jharkhand High Court
Raghunath Yadav vs Sukhdeo Mahto on 28 February, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 153 of 2006
1. Raghunath Yadav,
2. Bansi Yadav
3. Anachh Yadav
4. Barti Devi
5. Sheopujan Mahto
6. Sudesh Mahto
7. Manjri Devi
8. (a) Bandhan @ Charku Mahto
9. (a) Bilas Yadav
9.(b) Ranthi Yadav
9(c) Tepa Yadav
9(d) Ram Pyare Yadav
9(e) Devanti Devi
9(f) Sarita Devi
...... Appellants
Versus
1. Sukhdeo Mahto
2. Taro Devi
3. Pusa Devi
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants : Mr. Ayush Aditya, Advocate
Mr. Ashok Kumar, Advocate
Mr. Ankit Anand, Advocate
For the Respondents : Mrs. Manjushri Patra, Advocate
Mr. Vidhan Kumar Singh, Advocate
15/Dated: 28/02/2023
Heard Mr. Ayush Aditya, learned counsel for the appellants and Mrs. Manjushri Patra, learned counsel for the respondents.
2. This second appeal has been filed being aggrieved and dissatisfied with judgment and decree dated 19. 04.2006 (decree signed on 29.04.2006) passed by the learned District Judge, Latehar in Partition Appeal No. 16 of 2003 affirming the judgment and decree dated 30.09.1997 (decree signed on 10.11.1997) passed by the learned Sub Judge, Latehar in Partition Suit no. 4 of 1992.
3. The appellants/plaintiffs have instituted Partition Suit No. 4 of 1992 for getting a decree of partition in respect of the suit land particularly described in Schedule 'A' situated in Mauja Jilanga and village Mansingha for 1/4th interest in favour of himself and 1/4th share in favour of plaintiff no. 4 Jitu Mahto by carving out a separate Takhta in their favour. The said suit on contest was decided by the learned Sub Judge-I vide judgement dated 30.09.1997 in which he has been pleased to 2 dismiss the suit thereafter the appellants/plaintiffs filed Partition Appeal No. 16 of 2003 and by judgment dated 19.04.2006 the learned appellate court dismissed the said appeal affirming the judgement of the learned trial court. Aggrieved with that the present appeal was filed by the plaintiffs/appellants.
4. The case of the plaintiffs in brief is that the parties to the suit are the descendant of common ancestor Barju Mahto who died much before the cadastral survey of the year 1917-18 leaving behind his five sons who had constituted a Hindu co-parcenary family. The genealogical table is given in para 2 of the appellate court judgment. The further case of the plaintiff is that the land belonging to Khata No. 36.51 were originally belonged to Barju Mahto but after his death prior to cadastral survey were recorded by the survey authorities in terms of possession of the members of the co-parcenary who were in possession for the sake of convenience accordingly the raiyat land of Khata no. 36 measuring 9.30 acres of village Jilanga was recorded in the name of Baudha Mahto and Basli Mahto, Khata No. 51 measuring area 7.15 acres in village Jilanga was prepared in the name of Lajhan Mahto, Andu Mahto and Pchu Mahto and Khata no. 31 of village Mansinga was prepared in the name of Lajhan, Pachu, Andu, Bhikhu, Jagwa and Situa measuring 2.35 acres. These lands were within P.S. Balumath, District palamau now (Latehar). The lands discussed in three khatas are the subject matter of the suit. The further more case of the plaintiff is that out of five sons of Birju Mahto, one son Basli @ bastawa died soon after the cadastral survey i.e in or about in year 1920. Thereafter Baudha Mahto died after two years and then Lajhan, Andu, Pachu, they all died in the estate of their jointness with their respective brothers. Jagwa Mahto @ Jago Mahto died issueless while Bhikhu Mahto died in or about in year 1968 leaving a son Sahdeo Mahto and a daughter Budhani Devi, Sahdeo Mahto also died in or about 1972 leaving behind his widow Chando Devi the defendant no. 4 and a son Sukhdeo Mahto defendant no. 1 and two daughters who are defendant no. 2 and 3. Plaintiff nos. 2 and 3 are the grand sons of Lajhan Mahto and Plaintiff nos. 4 and 5 are descendant of Andu Mahto 3 while the plaintiff no. 1 now deceased and his legal heirs is on record was the son of Pachu Mahto. It is further averred by the plaintiff that since Basli Mahto had died near about the year 1920 so his daughter Phakali Devi did not inherit any interest. Setua Mahto died in State of jointness with the descendants of other four branches before the year 1939 so his interest by survivorship developed on the other four branches the descendants of Baudha, Lejhan, Andu and Pachu have got equal interest i.e. the plaintiff no. 1 has got ¼ interest. Plaintiff no. 2 and 3 got ¼ interest and the plaintiff no. 4 and 5 have got 1/4th interest and the remaining 1/4th interest belonged to the defendant. Since the branch of Basil Mahto had become extinct so the interest of Basil and his son Setua Mahto by Survivorship developed equally on the other four branches. It is still averrerd that in the year 1939 i.e. after the death of Setua Mahto in state of jointness with other members of the family there was a amicable arrangement, because Bhikhu Mahto son of Baudha Mahto had claimed for himself the entire interest of Setua Mahto for which a panchayati was conveyed and it was decided that all the four branches would have share in the lands jointly held by Basli Mahto and his son Setua Mahto and a document dated 11.02.1939 was prepared on which Jagwa Mahto, Bhikhu Mahto, Langar Mahto, Butan Mahto and Pachu Mahto had put their respective L.T. is in presence of the punches namely, Khemlal Sao, Indradeo Mahto, Bandhu Mahto and Nageshwar Mahto all of village Mansinga and witness Trilok Sao. This document was prepared by way of family arrangement to settle the dispute and accordingly the parties cultivated the land.
It is still more averted that defendant no.1 even after earlier family arrangement created trouble with regard to cultivation over the land having interest of Basli and Situa and so again in presence of respectable persons the matter was settled. In token of that document was prepared on 27.06.1991, in which the defendant no.1 Sukhdeo Mahto put his signature while Eto Mahato, Kail Mahto, Jitan Mahto put their respective L.T. is the defendant fraudulently for the purpose of getting more interest obtained sale deed for some land from Chhakhu Mahto, Bhagina of Setua Mahto but this sale deed remained a dead letter, it could not obtain a mutation. 4 Lateron he could know that by suppressing the matter and behind the back of the plaintiffs by misrepresentation and fraud reported to have obtained mutation separately for some land taking advantage of his position as Manger and Karta of the family. But the defendant no. 1 is in custody of all relevant papers concerning with the joint family properties. The defendant no. 1 had also sold some land to other person. So the prayer was made that if a final decree was prepared then the land sold by the defendant be adjusted from his allotted share by court. Therefore it was averted that in view of the facts stated above there is unity of title and unity of possession between the parties to the suit with respect to the suit land and in view of the increasing number of members in the family, the house constructed by the plaintiff separately in khata no. 31 be allotted to him in his Takhta at unimproved rate. It has been averred that defendant no. 1 is in collusion with defendant no.2 to 5 so they are siding with defendant no.1. The cause of action for the suit arose on 14.05.1992 when the defendant finally refused to make amicable partition and asked the plaintiff to seek partition through the Civil Court.
5. The case of defendant nos. 1 to 5 as per written statement filed on 21.12.1992 is that Barju Mahto in fact had no property much less the suit land. They further contended that although Barju Mahto had five sons but they were born of two wives. Baudha Mahto, Bansi @ Bastwa were born by first wife who lived together, whereas Lajhan, Andu and Pachu were born of the second wife who separately lived together, separate from the issue of first wife of Barju Mahto. In that state of affairs they had acquired different properties which were accordingly differently recorded as such during last cadastral survey. The lands of village Jilanga acquired and possessed by Baudha and Bansi were recorded under Khata No. 36 whereas the land of same village acquired and possessed by Lajhan, Andu and Pachu were recorded, khata no.
51. Lands of village Mansinga although were jointly acquired by all five sons of Barju but they had been partitioned before survey and accordingly khata no. 31 was prepared in their name which clearly depict that Baudha and Bansi were jointly recorded to be possessing various plots including house whereas Lajhan, Andu and Pachu were jointly possessing separate house as recorded under khata no. 31 of that 5 village. They further contended that on the death of Bansi @ Bastwa his entire interest developed upon Bhikhu and Jagwa sons of Baudha. It has been further contended that subsequently there has been various transfer of suit land by means of valid registered sale deed over which the alliances are in exclusive possession have been recognized as respective raiyat thereof. He further contended that the plaintiffs never acquired any right, title and interest over the land of khata no. 36 of village Jilanga and over those land of khata no. 31 of village Mansinga over which Baudha and Bansi were recorded in possession, hence they denied the unity of title and possession of the plaintiff over these lands. He further challenged the validity of two panchayati denying the same to have ever taken place or have been even brought into effect or have been acted upon. They further contended that the suit in question was actually a title suit in the garb of partition suit for which the plaintiffs are required to get their title declared before coming forward to partition. The defendants did not claim the land recorded under khata no. 51 of the village Jilanga or those land was recorded in possession of Lajhan, Andu and Pachu under Khata No. 31 of the village Mansinga. Therefore it was contended that the plaintiffs are not entitled to get any relief as prayed and suit is liable to be dismissed with especial compensation under section 35(A) of C.P.C.
6. By order dated 09.04.2009 this second appeal was admitted on the following substantial question of law:-
"(1) Whether both the Courts below have committed serious error of law in dismissing the suit for partition on the grounds that there had been no issue unity of possession in favour of the plaintiffs ?
(2) Whether holding that two Panchyati documents, Exts. 2 and 3, are inadmissible in evidence, the Courts below have correctly held that there had been partition of the suit property ?".
7. It appears that while framing law point no. 2, inadvertently in place of exhibit 6 it has been typed as exhibit 3.
Let exhibit 3 be read as exhibit 6 which has occurred inadvertently.
8. Mr. Ayush Aditya, learned counsel for the appellants submits that while 6 deciding issue no. 6 learned trial court came to the finding that story of panchayati was not proved and held that panchayati paper is false and fabricated document and not acted upon and decided the said issue against the plaintiffs and in favour of the defendants which is not in accordance with law. He further submits that so far as Issue no. 7 and 8 are concerned, the learned trial court has held that there is no unity of title and the unity of possession so far as suit land, both the plaintiffs and the defendants are separate and accordingly they are separate possession so far their respective area of the land as mentioned in khatiyan and both the issues were decided against the plaintiffs and in favour of the respondents which is without interpreting the documents in its correct perspective. He further submits that while deciding Issue Nos. 1 and 2 the learned trial court held that the suit is not maintainable and plaintiff has no valid cause of action for the present suit and accordingly, decided the said issues against the plaintiffs and in favour of the defendants. He submits that the jointness has been proved and Issue Nos. 1 and 2 have been wrongly decided by the learned trial court. He further submits that Issue Nos. 3 and 4 were decided by the learned trial court holding that the suit is barred under section 34 of Specific Relief Act and with regard to Issue No. 4 it was held that present suit is for the partition and for which a fixed court fee is to be paid by the plaintiff, so the suit is not under valued. The plaintiffs have also not paid ad volarem court fee in view of the nature of the suit and accordingly, decided the said issue. So far as Issue No. 9 is concerned, he submits that the said issue was decided against the plaintiffs and in favour of the defendants and accordingly, the learned trial court has dismissed the suit without cost.
9. He submits that the learned appellate court has not framed separate issue for determination of the case and that after considering the materials and evidences on record held that learned trial court has rightly decided the suit and the same does not warrant any interference by the appellate court and accordingly, dismissed the appeal without cost. So far as law point no. 2 is concerned he submits that it was erroneous finding by the learned trial court and appellate court and accordingly dismissed the appeal without cost. He submits that on erroneously the 7 learned trial court as well as the appellate court has not considered Exhibit 2 and Exhibit 6 which are documents with regard to share of Basli @ Bastwa who died leaving behind legal heir Setua and Setua who died issueless for that Exhibit 6 was created in which signature of both sides are there, which was created on 11.02.1939. He further submits that since the share was already decided in the year, 1939 then disputes arose after 53 years of the said document. Exhibit 2 came into existence on 27.06.1991. He further submits that Exhibit 2 was valid document and in that view of the matter there was no question of registration of said documents and the learned courts have erroneously not considered these documents on the ground that it was not registered documents. To buttress his argument, he relied in the case of "Roshan Singh and Others V. Zile Singh and Others" (2018) 14 SCC 814 wherein para 9, 10 and 11 the Hon'ble Supreme Court has 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 onwership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 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. 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, Section 49 of the Act will prevent its being admitted in evidence. Secondary evidence of the factum of partition will not be admissible by reason of Section 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.
10. The tests for determining whether a document is an instrument of partition or a mere list of properties, have been laid down in a long catena of decisions of the Privy Council, this Court and the High Courts. The question was dealt with by Vivian Bose, J. in Narayan Sakharam Patil v. Coop. Central Bank. Speaking for himself and Puranik, J. the learned Judge relied upon the decisions of the Privy Council in Bageshwari Charan Singh v. Jagarnath Kuari and Subramonian v. Lutchman4 and expressed as follows: (Narayan Sakharam case, SCC OnLine MP para 10) "10. It can be accepted at once that mere lists of property do not form an instrument of partition and so would not require registration, but what we have to determine here is whether these documents are mere lists or in themselves purport to "create, declare, assign, limit or extinguish ... any right, title or interest"
in the property which is admittedly over Rs 100 in value. The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary to effect the change in the legal relation contemplated."
Sir Gilbert Stone, C.J. speaking for himself and Vivian Bose, J. in Ganpat Gangaji Patil v. Namdeo Bhagwanji Patil5 reiterated the same principle. See also: order 8 cases in Mulla's Registration Act at pp. 56-57.
11. Even otherwise, the document, Ext. P-12 can be looked into under the proviso to Section 49 which allows documents which would otherwise be excluded, to be used as evidence of "any collateral transaction not required to be effected by a registered instrument". In Varatha Pillai v. Jeevarathnammal the Judicial Committee of the Privy Council allowed an unregistered deed of gift which required registration, to be used not to prove a gift "because no legal title passed" but to prove that the donee thereafter held in her own right. We find no reason why the same rule should not be made applicable to a case like the present."
10. Relying on the said judgment, learned counsel for the appellants submits that it has been held that merely list of property allotted at a partition is not an instrument of partition and does not require registration. Relying on this judgment he submits that law point no. 2 may kindly be answered in the favour of the appellants as Exhibits 6 and 2 only provide list of property allotted at a partition. He further submits that both the exhibits were signed on behalf of the parties in presence of the punches and in that view of the matter by discarding these two documents which are vital piece of evidence is erroneous on the part of the learned courts. He further submits that it is well settled that even without registration a written document of family settlement/family arrangement can be used as a corroborative evidence. To buttress his argument he relied in the case of " Thulasidhara and Another V. Narayanappa and Others" (2019) 6 SCC 409 wherein para 9.5 the Hon'ble Supreme Court has held as under:-
"9.5. As held by this Court in Subraya M.N. [Subraya M.N. v. Vittala M.N., (2016) 8 SCC 705 : (2016) 4 SCC (Civ) 163] even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. In the present case, as observed hereinabove, even the plaintiff has also categorically admitted that the oral partition had taken place on 23-4-1971 and he also admitted that 3 to 4 panchayat people were also present. However, according to him, the same was not reduced in writing. Therefore, even accepting the case of the plaintiff that there was an oral partition on 23-4-1971, the document, Ext. D-4 dated 23-4-1971, to which he is also the signatory and all other family members are signatory, can be said to be a list of properties partitioned. Everybody got right/share as per the oral partition/partition. Therefore, the same even can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. Therefore, in the facts and circumstances of the case, the High Court has committed a grave/manifest error in not looking into and/or not considering the document Ext. D-4 dated 23-4- 1971.
11. On the same line, learned counsel for the appellants relied in the case of "Korukonda Chalapathi Rao and Another V. Korukonda Annapurna Sampath Kumar" 2021 0 Supreme (SC) 535 wherein para 31 and 32 the Honble Supreme Court has held as under:-
"31. In Roshan Singh and Others v. Zile Singh and Others, AIR 1988 SC 881, the question arose whether Exhibit P12 in the said case was an instrument of 9 partition and therefore inadmissible for want of registration under Section 49 of the Registration Act or whether it was merely a memorandum of family arrangement. This Court after referring to the document held as follows:
"8. According to the plain terms of the document Exh. P-12, it is obvious that it was not an instrument of partition but merely a memorandum recording the decision arrived at between the parties as to the manner in which the partition was to be effected. The opening words of the document Exh. P-12 are: 'Today after discussion it has been mutually agreed and decided that....' What follows is a list of properties allotted to the respective parties. From these words, it is quite obvious that the document Exh. P-12 contains the recital of past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated. So also the Panch Faisla Exh. P-1 which confirmed the arrangement so arrived at, opens with the words 'Today on 31-1-1971 the following persons assembled to effect a mutual compromise between Chaudhary Puran Singh and Chaudhary Zile Singh and unanimously decided that....' The purport and effect of the decision so arrived at is given thereafter. One of the terms agreed upon was that the gher marked B2 would remain in the share of Zile Singh, representing the Plaintiffs.
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 Section 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. It is equally wellsettled 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, Section 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 Section 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." (Emphasis supplied) Thereafter, the Court also approved of the use of the said document for a collateral transaction and observed as follows:
"11. Even otherwise, the document Exh. P 12 can be looked into under the proviso to Section 49 which allows documents which would otherwise be excluded, to be used as evidence of 'any collateral transaction not required to be effected by a registered instrument'. In Varada Pillai v. Jeevarathnammal, (1919) 46 Ind App 285 : AIR 1919 PC 44 the Judicial Committee of the Privy Council allowed an unregistered deed of gift which required registration, to be used not to prove a gift 'because no legal title passed' but to prove that the donee thereafter held in her own right. We find no reason why the same rule should not be made applicable to a case like the present."
32. In SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. Private Ltd., (2011) 14 SCC 66, the question arose whether an arbitration agreement contained in a compulsorily registrable document which was not registered could be used to prove the collateral transaction, namely, the provision for arbitration. This court held as follows:
"11. Section 49 makes it clear that a document which is compulsorily registerable, if not registered, will not affect the immovable property comprised therein in any manner. It will also not be received as evidence of any transaction affecting such property, except for two limited purposes. First is as evidence of a contract in a suit for specific performance. Second is as evidence of any collateral transaction which by itself is not required to be effected by registered instrument. A collateral transaction is not the transaction affecting the immovable property, but a transaction which is incidentally connected with that transaction. The question is whether a provision for arbitration in an unregistered document (which is compulsorily registerable) is a collateral transaction, in respect of which such unregistered document can be received as evidence under the proviso to Section 49 of the Registration Act.
16. An arbitration agreement does not require registration under the Registration 10 Act. Even if it is found as one of the clauses in a contract or instrument, it is an independent agreement to refer the disputes to arbitration, which is independent of the main contract or instrument. Therefore having regard to the proviso to Section 49 of the Registration Act read with Section 16(1)(a) of the Act, an arbitration agreement in an unregistered but compulsorily registerable document can be acted upon and enforced for the purpose of dispute resolution by arbitration." (Emphasis supplied)"
12. He submits that learned courts have not appreciated the law particularly Section 17 of the Registration Act in its right perspective and wrongly held that these documents are inadmissible in evidence and on that ground both the learned courts erroneously held that there was partition and in that view of the matter, the law point no. II can be answered in favour of the appellants. He further submits that the learned courts have wrongly given finding that there is no issue of unity of possession in favour of the plaintiffs. He draws the attention of the court to the evidence of P.W.1, P.W.2, P.W.3, P.W. 4, P.W.5 and P.W.6 and submits that all these P.Ws. have stated that there is no partition between the parties and for their convenience they used to cultivate separately. He further submits that inspite of that oral evidence on record the learned courts have not appreciated this aspect of the matter. He further draws the attention of the Court to Exhibit E to E/3 which are Register-II and submits that in this document the name of the brothers are there which is sufficient to prove the unity of title and in that view of the matter the learned courts have wrongly came to the conclusion that unity of possession was not there. Exhibit 7 to 7B are certified copy of khatiyan and in the khatiyan the name of all five brothers are there. This is sufficient to prove the jointness. He further submits that in para 15 of the written statement of the defendants they have admitted that land of Khata No. 31 was jointly acquired which further suggests that partially jointness has been admitted by the defendants. He submits that it has been admitted in the written statement of the defendants that the land in khata no. 31 was jointly acquired but the learned courts have wrongly come to the conclusion that the jointness has not been proved. He further submits that even separate possession of the portion of the property is not a sufficient a ground for rejecting the case of the appellants/plaintiffs considering that presumption in Hindu Law in regard to the status of joint family is always there. To buttress his argument, he relied in the case of "Chinthamani Ammal V. Nandgopal Gounder and Another" (2007) 4 11 SCC 163 wherein para 17 the Hon'ble Supreme Court has held as under:-
"17. In law there exists a presumption in regard to the continuance of a joint family. The party which raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition. Several other factors are required to be considered therefor."
13. He submits that presumption as to coparcenary and self acquired property is clearly provided always in the unity as has been held by the Hon'ble Supreme Court in the case of "Adiveppa and others V. Bhimappa and Another" (2017) 9 SCC 586 wherein para 19 the Hon'ble Supreme Court has held as under:-
"19. It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. (See Mulla, Hindu Law, 22nd Edn. Article 23 "Presumption as to coparcenary and self-acquired property", pp. 346 and 347.)"
14. He further relied the judgement of the Co-ordinate Bench of this Court in the case of " Smt. Maina Devi @ Mainabati Bageria and Another V. Mohammaed Asagar" 1997 (2) PLJR 749 and submits that in this judgment the learned Single Judge held that merely when the piece of property is used for convenience it cannot be said that partition is there. He referred para 11 and 13 of the said judgment which reads as under:-
"11. As far as the receipt is concerned, it is signed on a 20 paise revenue stamp. It is allegedly executed by the respondent having received Rs.2,00,000/- (Rupees two lakhs) on 08.12.1983 as per the advice of the elders besides the amount of Rs.1,00,000/- (Rupees one lakh) already paid to the respondent mentioned in the Khararunama dated 15.04.1986 while vacating the house portion mentioned in the Kharurunama excepting the shop room which fell to the share of the respondent under the Partition List 1980 purportedly signed by two witnesses. It is executed in favour of the second appellant.
13. Section 17 (2) provides nothing in Clauses (b) and (c) of sub-Section (1) applies, inter alia, to any instrument of partition made by the revenue officer. Section 49 of the Registration Act reads as follows:
"49. Effect of non-registration of documents required to be registered.--No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: 54 [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) 55, 56 [***] or as evidence of any collateral transaction not required to be effected by registered instrument.] .."
15. On these grounds he submit that the documents are there to suggest that all the brothers are in unity in title but the learned courts have erroneously held that the appellants/plaintiffs have failed to prove the unity of possession. On these grounds he submits that law point no. 1 may be answered in favour of the 12 appellants/plaintiffs.
16. Per contra, Mrs. Manjushri Patra learned counsel for the respondents took the court to various paragraphs of the judgments of the learned trial court as well as appellate court and submits that there are concurrent findings of two courts and the High Court sitting under section 100 of the C.P.C. may not interfere with the impugned judgment that is well settled principle of law and accordingly the law points are required to be answered in favour of the respondents. She further submits that admittedly the Exhibits 6 and 2 are not registered documents and the learned trial court and the learned appellate court have rightly interpreted these two documents and have come to the conclusion that those are inadmissible evidence. To buttress her argument, she relied the judgments reported in the case of "Thulasidhara and Another V. Narayanappa and others reported in (2019) 6 SCC 409, "Yellapu Uma Maheshwari & Ors. Vs. Buddha Jagadheeswarrao and others, reported in 2015 (6) SCC 787, " Sita Ram Bhamavs V. Ramavatar Bhama" reported in 2018 (15) SCC 130, " Sanwar Mull Jalan V. Pannalal Jalan reported in 2002(3) JLJR 454," "Jugal Kishore Singh Vs. Gobind Singh & Others reported in 1992 (2) PLJR 35, "Ravinder Kaur Grewal and Ors. Vs. Manjit Kaur" reported in 2020 (9) SCC 706. Relying on these judgments, she submits that even the family arrangement are required to be registered which has been considered in the said judgment and in that view of the matter learned courts have rightly came to the conclusion about the two documents and these two law points may be answered in favour of the respondents. She draws the attention of the Court to para 15 of the judgment of the appellate court and submits that the learned appellate court has given cogent reason to come to the conclusion and held that the appellants have not been able to prove the case of unity of possession and jointness and accordingly, these two law points may be answered in favour of the respondents.
17. In view of the above submission of the learned counsel for the parties the court has gone through the judgement of the learned trial court as well as appellate court including Lower Court Record. It is an admitted fact that the appellants/plaintiffs have instituted the suit for a decree of partition in respect of the 13 suit land particularly described in Schedule 'A' situated in Mauja Jilanga and village Mansingha for 1/4th interest in favour of himself and 1/4th share in favour of plaintiff no. 4 Jitu Mahto by carving out a separate Takhta in their favour. The learned trial court framed eight issues to decide the suit and dismissed the suit vide judgment dated 30.09.1997. The Court finds that both the courts have discarded two documents on the ground that those are not registered document and in view of Section 17 of the Registration Act, the same was required to be registered. There are parameters of registration of document as described under section 17 of the Registration Act. Exhibit 6 is document of year 1939. In the list of properties as has been prescribed in view of the fact that Basli alias Bastaba died leaving his son Setua who also died issueless and for the share of these two deceased persons Exhibit 6 was created in the year, 1939 and after 53 years dispute arose between the parties. Exhibit 2 was created in the year, 1991. By way of exhibit 2, exhibit 6 was only reiterated.
18. It is well settled that mere list of properties allotted at a partition is not an instrument of partition and does not require registration as has been held of the Hon'ble Supreme Court in the case of Roshan Singh (supra). It is further well settled that even without registration a written document of family settlement/family arrangement can be used as a corroborative evidence as explaining the arrangement made thereunder and conduct of the parties as has been held by the Hon'ble Supreme Court in the case of Thulasidhara (supra).
19. The learned counsel for the respondents has also relied in the case of Thulasidhara (supra) on the ground that the High Court sitting under section 100 of the C.P.C. is not required to interfere in the concurrent finding of the two courts that is not in dispute. It is well settled that this second appeal is required to be decided only on substantial question of law and the High Courts are not interfering if the substantial question of law is not involved. The case relied by the learned counsel for the respondents in the case of " Yellapu Uma Maheshwari And Another Vs. Buddha Jagadheeswara Rao and others reported in (2015) 6 SCC 787 registration was held to be necessary considering that the relinquishment of 14 one of the parties was alleged there in that scenario Hon'ble Supreme Court has held the registration of the document is necessary but the facts of the present is otherwise as discussed hereinabove. Accordingly the said judgement relied of the learned counsel for the respondents is not helping the respondents. So far as other judgments relied by the learned counsel for the respondents are concerned, those judgements are not in dispute in view of the fact that in those documents registration Act was considered and what is the scope of section 17 of the Registration Act was discussed therein. The case of the appellants is fully covered with the case of "Roshan Singh" (supra) and Thulasidhara (supra). Accordingly, the court finds and holds that exhibits 6 and 2 are the documents of 1939 and 1991 respectively and signed on behalf of the parties in presences of the punches which are the documents of the list of properties of Basli @ Basatba are there and exhibit 2 has reiterated the exhibit 6.
20. There is no hesitation in coming to the conclusion that the learned courts have wrongly held those documents inadmissible evidence, hence law point no. II are answered to the effect that these two documents are admissible evidence.
21. So far as law point no. I is concerned, the court has gone through the evidence of P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6, all these P.Ws. have constantly stated that there is no partition between the parties and only for their convenience they were cultivating the land separately. Further Exhibit E to E/3 are document which is register-II wherein the name of all the five brothers are recorded therein which suggests that jointness are there. Exhibit 7 to 7B are the document which is khatiyan. In the khatiyan also the name of five brothers are there. Thus these two documents suggests that there are jointness and there is no partition and considering oral evidence of P.W.1 to P.W.6 only for the convenience they were cultivating the land separately. Presumption under Hindu Law has been considered by the Hon'ble Supreme Court in the case of Adiveppa (supra). A co-ordinate Bench of this Court on the point of convenience has also held that for convenience if it is being cultivated by the parties partition is not proved.
22. In view of this fact and considering the documents as well as evidence 15 the court comes to the conclusion that the learned courts have wrongly came to the conclusion that there is no jointness between the parties. Accordingly, law point no. I is answered in favour of the plaintiffs/appellants.
23. Consequently, judgment and decree dated 19.04.2006 (decree signed on 29.04.2006) passed by the learned District Judge, Latehar in Partition Appeal No. 16 of 2003 is set aside. Partition Appeal No. 16 of 2003 is restored to its original file. The learned appellate court shall decide the said appeal further in accordance with law as discussed here-in-above.
24. The parties are directed to appear before the learned appellate court on 27.03.2023.
25. This second appeal is allowed and disposed of in above premises.
26. Let L.C.R. be transmitted back to the learned concerned court forthwith.
( Sanjay Kumar Dwivedi, J.) Satyarthi/