Calcutta High Court (Appellete Side)
Harapada Mondal & Ors vs Nishikanta Mondal & Ors on 17 June, 2016
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Shivakant Prasad
C.O. 142 of 2013
Harapada Mondal & Ors.
Vs.
Nishikanta Mondal & Ors.
For the Petitioners : Mr. Sandip Das
For the Opposite Parties : Mr. Ganesh Panda
Heard On : 08.06.2016
CAV On : 08.06.2016
Judgment On : 17.06.2016
SHIVAKANT PRASAD, J.
Challenge in this application is against the Order being No. 59 dated 04.07.2012 passed by the learned Civil Judge (Junior Division), 1st Court, Diamond Harbour arising out of Title Suit No. 52 of 2006.
Chronological event leading to the instant case is that the petitioners as plaintiffs instituted a Title Suit being No. 52 of 2006 against the opposite parties as defendants in the learned Court of Civil Judge (Junior Division), 1st Court, Diamond Harbour for declaration of title along with a prayer for injunction in respect of 19 sataks of land under R.S. Khatian No. 770, L.R. Khatian 818/1530 in Plot Nos. 2106 and 2107 of Mouza Rajarampur within P.S. Falta, District-24-Parganas (South).
The case of the plaintiffs/petitioners as stated in the plaint in short is that the case plots along with other plots in suit Khatian belonged to plaintiffs and other co-sharers. Long before R.S. settlement operation there was an amicable partition in between the co-sharers for proper enjoyment and by virtue of such partition done amicably plaintiffs get Plot No. 2106, 2107 bastu 11 sataks and are in exclusive physical possession. The name of the plaintiffs have been duly recorded in the Record of Rights and plaintiffs raised their bastu and converted Plot No. 2106 as tank.
It is stated that the plaintiffs filed Title Suit No. 1 of 2004 against one Naren Mondal (since deceased) and since legal heirs of Naren Mondal were not made parties, defendants No. 1 to 4 threatened the plaintiffs from forcible dispossession of the plaintiffs for which the plaintiffs were compelled to file the instant suit.
Specific case of the plaintiffs/petitioners is that by virtue of such amicable partition plaintiffs got Plot No. 2106 measuring about 08 sataks, Plot No. 2107 measuring about 11 sataks and the defendants got Plot No. 2108 measuring about 07 sataks Plot No. 2109 measuring about 07 sataks. Non-suit plots i.e. in 2110, 2111 and 2112 plaintiffs and defendants got in equal share. By partition plaintiffs got 29 sataks, defendant got 24 sataks and the parties according to their wish and desire got the same partitioned with the help of an Amin and the parties also signed in the sketch map drafted by Amin. This fact was not averred in the original plaint and the plaint was amended to that effect on an application. Defendants appeared in the suit and were contesting the same by filing a written statement denying all material particulars made in the plaint.
The suit proceeded and P.W.-1 was examined and during trial petitioners submitted the sketch map of Amin for marking the same as an exhibit at that stage the defendants filed an application dated 01.02.2011 contesting the same. Petitioners however filed a written objection to the aforesaid application dated 01.02.2011. The application dated 01.02.2011 filed by the defendants came up for hearing before the learned Judge on 04.7.2012 who by his Order No. 59 allowed the same and directed that the sketch map dated 28.11.1988 as filed by the plaintiffs will not be marked exhibit in the case.
Being aggrieved by the said order the petitioners preferred this revision, inter alia, on the grounds that the learned Judge failed to consider the settled proposition that a sketch map prepared by an Amin is not to be registered and the same is a document of previous partition amongst the co-sharers and also failed to appreciate the plaint's case that partition amicably has been made long before R.S. settlement operation in between the parties.
It is submitted on behalf of the petitioners that the sketch map is a Memorandum of Partition and as such there is no requirement of registration of the said document and as such the document is required to be marked as an exhibit.
Accordingly, the petitioners have prayed for setting aside order impugned as bad in law and in fact.
Mr. Sandip Das learned Counsel for the petitioners/plaintiffs submitted a decision in case of K. B. Saha and Sons Private Limited Vs. Development Consultant Limited reported in (2008) 8 Supreme Court Cases 564, wherein it has been observed in Paragraph 34 thus --
"34. From the principles laid down in the various decisions of the Supreme Court and the High Courts, it is evident that : (i) a document required to be registered, if unregistered, is not admissible in evidence under Section 49 of the Registration Act,
(ii) such an unregistered document can however be used as an evidence for collateral purpose as provided in Section 49 proviso of the Registration Act, (iii) a collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration, (iv) a collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards, and (v) if a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
Case of Kale & Ors. vs. Deputy Director of Consolidation & Ors. has also been referred in support of petitioners case contending that family arrangements is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family.
It has been observed in Paragraph 10 of the cited decision thus--
"10. In other words to put the binding effect and the essentials of family settlement in a concretised form the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud coercion or undue influence; (3) The family arrangements may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing.
Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Sec. 17(1) (b)?) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
I have respectfully gone through the guiding principles indicative above which principles were enunciated and adroitly adumbrated in a long course of decisions of the Hon'ble Apex Court as also of the Privy Council and other High Courts. It has been held that the compromise was not required to be registered. Even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement.
Held, further that assuming, that the said document was compulsorily registrable the family arrangement being binding on the parties to it would operate as an estoppels by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it.
Mr. Das has also relied on a decision in case of Bipin Shantilal Panchal v. State of Gujrat and Another reported in (2001) 3 Supreme Court Cases 1, wherein it has been held thus--
"It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. Such practices when realized through the course of long period to be hindrances which impede steady and swift progress of trial proceedings must be recast or remolded to give way for better substitutes which would help acceleration of trial proceedings.
When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. There is no illegality in adopting such a course.
However, if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.
The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection without bothering to remit the case to the trial court again for fresh disposal. This measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
Therefore, the above is made as procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence."
In the case of Digambar Adhar Patil v. Devram Girdhar Patil (died) and another reported in AIR 1995 Supreme Court 1728 wherein it has been held that entries in records of rights maintained in official course of business is relevant piece of evidence.
On the contrary, Mr. Ganesh Panda, learned Counsel for the opposite parties has submitted a decision in case of Tek Bahadur Bhujil v. Debi Singh Bhujil & Ors. reported in AIR 1966 Supreme Court 292 wherein it is observed in Paragraph 12 thus--
"12. 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."
Mr. Panda referred to a decision in case of Tarjen Mondal Vs. Prithiraj Mondal reported in 2011(5) CHN (Cal.) 102, contending that an unregistered document which is compulsorily registrable cannot be admitted in evidence adverting to paragraph 14 which reads as under--
"14. Although the deed of family settlement/partition does not require any registration but once the same is reproduced in writing then such document requires registration [see. Rajangam Ier vs. Rajangam Ier, 1923 (69) Indian Cases : Nami Bai vs. Gita Bai, AIR 1958 SC 706: Roshan vs. Zila AIR 1988 SC 881]"
I have respectfully gone through the above cited decisions by the rival parties and this Court is of the view that marking of the document is not a conclusive proof of the contents of the same and is required to be proved during the trial.
Mr. Das has emphatically submitted that the sketch map prepared on 28.11.1988 is an acknowledgment of the amicable partition held long before C.S. operation. If this submission is taken into consideration in terms of the amended plaint then the said fact can be enquired into with the help of successive record of right in respect of the suit properties to find as to whether in terms of amicable partition the properties amongst the co-sharers were recorded in the C.S. Record of Right, R.S. Record of Right and L.R. Record of Right and thus, it can be decided as to whether the sketch map prepared by Amin duly signed by the persons were by and between the parties to the suit or not.
Having considered the sketch map being produced before the learned Trial Court pursuant to the amendment of the plaint on that score, sketch map in my considered opinion is an acknowledgement alleged to be in respect of amicable partition which is not document required to be compulsorily registered under Section 17 of the Registration Act. Dwelling on the principles in case of Kale & Ors. vs. Deputy Director of Consolidation & Ors. and Bipin Shantilal Panchal (Supra), this Court is pleased to direct the learned Trial Court to mark the sketch map as collateral document in question and to enquire into the factum of amicable partition long before C.S. operation in the context of the record-of-rights in respect of the suit properties, ergo, the order impugned is set aside.
In the result, the C.O. No. 142 of 2013 is allowed. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)