TUSHAR Vs. SH BALLU RAM

JUDGEMENT

(1.) THE challenge by means of this Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 27.2.2004. By the impugned judgment, the trial Court has dismissed the suit for partition and injunction filed by the appellants/plaintiffs. THE appellants/plaintiffs, in the suit were the minor children of Sh. Daya Chand, the deceased son of Sh. Ballu Ram/defendant No.1. Suit was filed through their mother-Smt. Sarita. THE basic cause of action pleaded in the plaint was the entitlement to share in the suit property admeasuring 25 sq. yds. bearing No.7/429, Trilok Puri, Delhi on the ground that the property was an ancestral property, however this plea of the appellants/plaintiffs has been disbelieved by the trial Court which also holds that the suit property stands validly transferred to a third party, namely, Sh. Ram Bharosay/defendant No.5/respondent No.5.

(2.) THE facts of the case are that the appellants/plaintiffs filed the subject suit for partition and injunction pleading that the suit property was originally owned by one Smt. Sukhbiri Devi and the same was purchased by defendant No.1/Sh. Ballu Ram by the usual documents dated 12.2.1986 being the agreement to sell, general power of attorney, receipt, affidavit and the Will. THE Will and receipt are registered documents. It was further pleaded in the plaint that though the suit property was in the name of defendant No.1, the same was an ancestral property and therefore the plaintiffs as the legal heirs of one son of Sh. Ballu Ram were entitled to 1/3rd share. It was additionally pleaded in the plaint that there was a partition deed dated 21.4.1998 whereby the suit property was divided into three equal shares. One share (ground floor) fell to Daya Chand, father of the plaintiffs, another share (first floor) fell to Sh. Jai Chand, defendant No.2 and the third share (second floor) fell to Sh. Kishan Chand, defendant No.4, all of whom were sons of Sh. Ballu Ram. Since the defendants/respondents are stated to have refused to partition the suit property, the subject suit came to be filed.

(3.) THE main issues dealt with by the trial Court are issue Nos.1,2 and 6 and while giving the findings with respect to the same, the trial Court has arrived at a finding of fact that the suit property is not an ancestral property inasmuch as Smt. Sarita appearing as PW-1 categorically admitted in her cross-examination that the suit property was purchased by Sh. Ballu Ram-defendant No.1 from his retirement funds. Such an admission was made not once but twice in the cross-examination. Accordingly, the trial Court has held that there does not arise any issue of the property being an ancestral property. Trial Court has further held that the partition deed which was filed and proved by the appellants/plaintiffs through PW-8 Sh. Anis Ahmed, Advocate exhibited as Ex.PW8/A could not be looked into as the same was an unregistered document inasmuch as registration of the partition deed was compulsory in view of Section 17(1)(b) of the Registration Act, 1908, and thus Section 49 of the Registration Act, 1908 bars any rights being claimed on the basis of such a document which is unregistered. No finding was given with respect to issue No.5 of the claim of declaration of ownership of defendant No.5 as the trial Court felt that there was no occasion to decide the title of defendant No.5 with respect to the suit property.