Patna High Court
Suresh Rai vs Nagendra Sah And Ors. on 11 July, 2001
Equivalent citations: 2001(3)BLJR1643
Author: S.K. Katriar
Bench: S.K. Katriar
JUDGMENT S.K. Katriar, J.
1. Defendant No. 3 is the appellant against a judgment of affirmance. This appeal is directed against the judgment dated 24-2-2001 and the consequent decree passed by the learned District Judge, Vaishali, in Title Appeal No. 22 of 1999 (Suresh Rai v. Nagendra Sah and Ors.), whereby he has dismissed the appeal of Defendant No. 3 (the present appellant) and affirmed the judgment dated 27-3-1999, passed by the learned Subordinate Judge, 4th Court, Vaishali at Hajipur in Title Suit No. 87/95/85/95 (Nagendra Sah v. Brijnandan Sah and Ors.). We shall go by the description of the parties in the trial Court.
2. The plaintiff (respondent No. 1 herein) had instituted the suit for declaration of the three sale-deeds in question, executed by Defendant No. 1 in favour of the Defendant second party as null and void, inoperative, and not binding upon him, as well as for delivery of possession. The details of the sale-deeds have been mentioned in Schedule II of the plaint. A genealogical table of the family of the plaintiff and Defendant No. 1 has been appended in Schedule I of the plaint which is as follows:
JAI NARAYAN SAH ____________________________________________________________ | | | Bechu Sah Bhola Sah Nagendra Sah (dead.) (dead.) | | | ____________________________ | | | | Brijnandan Sah Mohan Sah | @ Birju Sah | (defdt. No. 1) | | ____________________________________________________________________ | | | | | | | Perukant Umakant Ramesh Suresh Gopal Hemant Sudama Sah Sah Sah Sah Sah Sah Devi defdt. No. 3) 2.1. According to the plaintiff-respondent No. 1, late Jai Narayan Sah was the common ancestor of the parties, who died leaving behind 3 sons, namely Bechu Sah, Bhola Sah, and Nagendra Sah. Bechu Sah died leaving behind his six sons and a daughter. Bhola Sah died leaving behind his two sons, namely, Brijnandan Sah alias Birju Sah and Mohan Sah Birju Sah alias Brij Nandan Sah is Defendant No. 1 (respondent No. 2 herein), and Nagendra Sah is the plaintiff (respondent No. 1 herein).
2.2. According to the plaint, there had been mutual partition of all the family properties in 1981 between the sons of Bechu Sah, Bhola Sah and Nagendra Sah (the plaintiff), and accordingly, they came in exclusive possession of their lands. However, the residential house of the family remained joint. Later on, a memorandum of partition deed dated 22-11-1983 was also prepared in support of the mutual partition held earlier over which all the parties appended their signatures or L.T.I, and copy of the same was also given to each party. According to the partition, 2 kathas 11 dhurs out of Chak No. 62 situated contiguous south of the residential house was allotted to the share of the plaintiff. The disputed new plot Nos. 92 and 93 have been carved out of Chak No. 62. Out of said 2 kathas 11 dhurs of land, the plaintiff-respondent has already sold 1 katha land towards south to one Ram Pravesh Sah and others over which they are in possession. Birju Sah, the Defendant first party (respondent No. 2 herein) did not get any share in Chak No. 62 (new plot Nos. 92 and 93). He got share in plot Nos. 39, 45 and 20.
2.3. According to the further averments in the plaint, the plaintiff-respondent No. 1 (Nagendra Sah) came to know that in the year 1995 the Defendant first set respondent No. 2 (Brijnandan Sah) wrongly executed 3 sale-deeds in question in favour of Defendants second set. The Defendant first set had not right or title to executed the sale-deeds in favour of Defendant second set in respect to the land in question. It has been further alleged that ultimately, the Defendants second set dispossessed the plaintiff from 13 dhurs of land out of his share and also raised construction forcibly over the same.
3. The case of Defendant No. 3 (the appellant herein), inter alia, is that the suit as framed is not maintainable and the plaintiff has got no cause of action. He has admitted the genealogical table given in the plaint. He has further admitted about the mutual partition of the family properties but the year of the partition has been denied. He has denied about execution of any memorandum of partition as alleged by the plaintiff. According to him, it is false that the plaintiff got 2 kathas 11 dhurs out of plot Nos. 92 and 93 in his exclusive share. The sale-deeds executed by Defendant No. 1 are genuine, valid and operative about which the plaintiff had knowledge since its inception.
3.1. According to Defendant No. 3, he sold his entire share through 3 sale-deeds in favour of Defendant Nos. 2 and 3, who thereafter came in possession over the lands under the deeds. Mohan Sah, the brother of Birju Sah, who had his share just towards north of the land of Defendant No. 1, also sold his share of land in favour of one Reeta Devi through registered sale-deed in which the plaintiff is one of the witnesses.
4. The learned trial Court framed the following 5 issues for adjudication of the suit:
(1) Is [he suit as framed maintainable?
(2) Has the plaintiff got cause of action for the suit?
(3) Is the suit barred under Section 34 of the Specific Relief Act?
(4) Are the sale-deeds dated 12-4-1995,17-4-1995 and 5-12-1995 executed by Defendant No. 1 in favour of Defendant Nos. 2 and 3 null, void, illegal and not binding upon the plaintiff?
(5) Is the plaintiff entitled to get reliefs? as claimed or any other relief?
5. The trial Court on contest decreed the suit and held that the story of oral partition as propounded by the plaintiff (respondent No. 1 herein) is correct and through which he got 2 Kathas, 11 Dhurs of land out of disputed Plot No. 92 including the disputed land of 13 Dhurs and accordingly came in possession of the same. The trial Court further held that the story of oral partition as propounded by the plaintiff is correct and through which the plaintiff got 2 kathas 11 dhurs land out of the disputed Plot No. 92 including the disputed land of 13 Dhurs and accordingly he came in possession over the same. It has further held that the memorandum of partition (Ext. 2) does no require compulsory registration. However, he has further held that the plaintiff alone has no title over the land in question, rather all the descendants of Jai Narain Sah including Defendant No. 1 have title over the same according to their shares. Accordingly, he has held that the sale-deeds executed by Defendant No. 1 in favour of Defendant Nos. 2 and 3 are not null and void, illegal and inoperative. He has further held that as the plaintiff acquired possession through oral partition, the Defendants had no right to dispossess the plaintiff and came in possession over the same without effecting partition with other co-sharers. Accordingly, he decreed the suit in part and has directed Defendant Nos. 2 and 3 to deliver vacant possession of the disputed land to the plaintiff. He has also directed the Defendants to take step for getting possession over the suit land after effecting partition as said above. On these findings, the suit was decreed and the three sale-deeds have been set aside. Defendant No. 3 (Suresh Rai) appealed before the District Judge.
6. Learned Court of appeal below formulated the following questions for determination:
(1) Whether the suit of the plaintiff is hit under Section 34 of the Specific Relief Act?
(2) Whether there had been partition of family properties as alleged by the plaintiff-respondent and whether the (and in question, i.e., Plot No. 92 fell in the share of the plaintiff-respondent?
(3) Whether the plaintiff-respondent is entitled to get relief or reliefs as claimed?
(4) Whether the judgment and decree under appeal is fit to be set aside as submitted by the Defendant/appellant?
He has found that the suit is not barred under Section 34 of the Specific Relief Act. He has also found that story of partition as propounded by the plaintiff is true. He has further held that Ext. 2 (the memorandum of partition), does not need compulsory registration. With these findings, the appeal has been dismissed. Defendant No. 3 has preferred the present appeal against the judgment of affirmance.
7. While assailing the validity of the impugned judgment, learned Counsel for the appellant has submitted that the plaintiff has based his title on the memorandum of partition, but the trial Court has not framed any issue whether or not there was any partition. He has next submitted that memorandum of partition (Ext. 2) requires compulsory registration. It is an unregistered document, therefore, inadmissible under the Evidence Act. He relies on the judgment of this Court 2001 (3) PLJR 236 (Kali Sao v. Smt. Shanti Devi) and the judgment of the Madras High Court (AC. Lakshmipathy v. A.M. Chakrapani Reddiar). He next submitted that the provisions of Order XLI, Rule 22, C.P.C. should be sparingly used. He has relied on the judgment of this Court 1986 PLJR 503 : 1986 BBCJ 578 (Puran Sah v. Buny Sah).
8. Learned Counsel for the plaintiff-respondent has submitted in opposition that the memorandum of partition (Ext. 2) require compulsory registration. It was not intended to be used as the evidence of partition, but was only a memorandum of oral partition for recapitulation. He relies on the aforesaid two judgments relief on by the learned Counsel for Defendant No. 3 (appellant). He has also submitted that P.W. 4 (Ramesh Sah, son of Bechu Sah), P.W. 5 (Mohan Sah, full brother of Defendant No. 1, Brijnandan Sah) and P.W. 9 (Nagendra Sah), plaintiff, have unequivocally deposed that there was an oral partition. He next submitted that the question of partition has been discussed at length by both the Courts below. He relies on the judgments of the Supreme Court 164 (Kunju Kesavan v. M.M. Philip) the judgment of this Court 2000 (2) PUR 76 (Elite Engineering Co. v. Bihar State Electricity Board) (Paragraph-6) and the judgment of the Rajasthan High Court (Hazur Singh v. Behari Lal).
9. On a consideration of the entire matter and the rival submissions, it appears to me that the main question and perhaps the only substantial question which arises for the consideration of this Court is whether or not the memorandum of partition (Ext. 2) requires compulsory registration. Both the sides have taken me through the contents of the same. It appears from a plain reading of this memorandum of partition that the partition had orally taken place earlier and the document was only for recapitulation of the terms of partition. It was not intended to be used as evidence and, therefore, does not require compulsory registration. Learned Counsel for plaintiff-respondent No, 1 has, therefore, rightly relied on para-30 of the judgment of the Madras High Court in AC. Lakshmipathy v. AM. Chakrapani Reddiar (supra), which is set out hereinbelow for the facility of quick reference:
30 But, however, after family arrangement if a mere memorandum is prepared for the purpose of record or for information of the Court for making necessary mutation, such memorandum itself does not create or extinguish any rights in immovable properties and therefore, does not fall within the mischief of Section 17 of the Indian Registration Act and therefore, not compulsorily register-able. Similarly, a mere list prepared by the parties, not setting out the entire terms of the family arrangement need be registered.
In the decision A.I.R. 1976 SC 807, the apex Court has observed as under:
In Tek Bhadur Bhujil. Debi Singh Bhujil A.I.R. 1966 SC 292, it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed to did not require registration. this Court had observed thus:
Family arrangement as such can be arrived at orally, its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.
A Full Bench of the Allahabad High Court in Ramgopal N. Tulshi Ram A.I.R. 1928 All 641, 649 has also taken the view that a family arrangement could be oral and if it is followed by a petition in Court containing a reference to the arrangement and if the purpose was merely to inform the Court regarding the arrangement, no registration was necessary. In this connection, the Full Bench adumbrated the following propositions in answering the reference:
We would, therefore, return the reference with a statement of the following general propositions:
With reference to the first question:
(1) A family arrangement can be made orally.
(2) If made orally, there being no document, no question of registration arises.
With reference to the second question:
(3) It though it could have been made orally, it was in fact reduced to the form of a 'document' registration when the value is Rs. 100/- and upwards is necessary.
(4) Whether the terms have been 'reduced to the form of a document' is a question of fact in each case to be determined upon a consideration of the nature and phraseology of the writing and the circumstances in which and the purpose with which it was written.
(5) If the terms were not "reduced to the form of a document" registration was not necessary (even though the value is Rs. 100/- or upwards); and, while the writing cannot be used as a piece of evidence for what it may be worth, e.g. as corroborative of other evidence or as an admission of the transaction or as showing or explaining conduct.
(6) If the terms were "reduced to the form of a document" and, though the value was Rs. 100/-or upwards, it was not registered, the absence of registration makes the document inadmissible in evidence and is fatal to proof of the arrangement embodied in the document....
Similarly, the Patna High Court in Awadh Narain Singh v. Narain Mishra pointed out that a compromise petition not embodying any terms of agreement but merely conveying information to the Court that family arrangement had already been arrived at between the parties did not require registration and can be looked into for ascertaining the terms of family arrangement. This is what actually seems to have happened in the present case when the mutation petition was made before the Assistant Commissioner.
I have thus no hesitation in concluding that the memorandum of partition (Ext. 2) in the background of the cases of the parties and the oral evidence, was recapitulation of oral partition which had already taken place and, therefore, does not require compulsory registration, and is an admissible document. Thus, the plaintiff acquired exclusive title over 2 kathas and 11 dhurs of land out of Plot No. 92 by virtue of mutual partition. Further more, the issue is concluded by findings of facts which binds this Court in second appellate jurisdiction.
10. Learned Counsel for Defendant No. 3 (appellant) has next contended that the trial Court did not frame specific issue whether or not a partition had, in fact, taken place. The contention is stated only to be rejected. This is putting the cart before the horse. As is manifest from the discussions hereinabove, the memorandum of partition (Ext. 2) is an admissible document and it has been so found by both the Courts below. Therefore, it follows as a matter of natural corollary that there was in fact a partition between the parties and the plaintiff had title to the property. Further more, this issue clearly arises out of the pleadings of the parties, the parties were alive to the issue, led evidence with respect to this aspect of the matter, was thrashed during the course of oral arguments before the trial Court who has discussed this issue in its judgment and found against Defendant No. 3. The learned Court of appeal below has formulated this question specifically for his consideration and has come to a clear finding of fact that there was in fact a partition. In fact, this clearly flows from the previous finding of fact that the memorandum of partition is an admissible document. Learned Counsel for the plaintiff-respondent No. 1 has, therefore, rightly relied on the aforesaid judgment of the Supreme Court in Kunju Kesavan v. MM. Philip (supra). It has been observed in paragraph 17 that "...the parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate, the decision. The plea was hardly needed in view of the fact that the plaintiff made the following plea in the replication:"
Further more, the issue is really concluded by concurrent finding of facts.
11. Learned Counsel for the appellant has lastly submitted that the provisions of Order XLI, Rule 22, C.P.C. should be sparingly used. Learned Court of appeal below has discussed this issue at length in paragraphs 41 to 44 of the impugned judgment with which I fully agree. The issue is really concluded by finding of facts.
12. In the result, this appeal fails and is hereby dismissed with costs throughout.