MOHD IBRAHIM Vs. MUBARAK KHAN

JUDGEMENT

(1.) HEARD Sri Prabhakant Mishra, learned Counsel for the appellant and Sri K. K. Tiwari, learned Counsel for the respondents on the point of admission of the second appeal for hearing and I have also perused the judgments of the Courts below and other documents filed on record. From perusal of the record it is evident that appellant instituted O. S. No. 216 of 2000 Mohd. Ibrahim v. Mubarak Khan and others for partition of the joint family property and the appellant claimed his share 1/3. The defendants/respondents contested the suit and filed written and alleged that the property in dispute had already been partitioned in between the parties in pursuance of registered partition deed dated 12. 3. 1973. Further, it has also been alleged that now the plaintiff appellant has got no share in the property in dispute and he has already executed a sale deed/agreement on 4. 6. 1980 and damages were also claimed from the plaintiff/appellant for illegally occupying the property which was sold to them by the appellant and on which the plaintiff is in possession as a licensee. Both the Courts below dismissed the suit of the plaintiff for partition and further alleged that the plaintiff/appellant has got no share in the property in dispute in view of the document dated 4. 6. 1980 and the Trial court also awarded damages at the rate of Rs. 15/- per day.

(2.) IT has been argued by learned Counsel for the appellant that firstly the partition alleged to have taken place on 12. 3. 1973 was not the proper partition of the entire property and some of the property remained joint thereafter. He also argued that so called partition deed dated 12. 3. 1973 has not been properly proved in view of section 90-A of sub-section (2) of U. P. Amendment of Indian evidence Act that this partition deed was the basis of the defence and required to be proved according to Evidence Act. He also argued that defendants/respondents have alleged that the plaintiff/ appellant transferred his share in the property in dispute vide document dated 4. 6. 1960. He stated that this is an agreement to sale and not sale deed. He also stated that this agreement to sale is also an unregistered deed. And by no stretch of reasoning this agreement may be called a sale deed and if it may be treated as sale deed then no right and title accrued in favour of the person in whose favour executed because it is an unregistered sale deed. And the judgments' of the Courts below are perverse to the effect that the appellant had no share in the property in dispute as he had already transferred his share to the defendants. That the courts below are also most unjustified to the extent of awarding the damages at the rate of Rs. 15/- per day.

(3.) LEARNED Counsel for the respondents disputed the argument of the appellant counsel and he further argued that the suit for partition was not maintainable as the property in dispute was partitioned on 12. 3. 1973 by a registered partition deed prior to the institution of the suit. Learned Counsel also argued that plea of counter claim was also set up in the written statement and it has been alleged that as the appellant had already transferred his share to the defendants in pursuance of a deed allegedly executed on 4. 6. 1980. And after this deed the possession of the appellant is permissive as a licensee and as the appellant has not vacated the property in dispute. Hence defendants are also entitled for damages. And he stated that the judgment of the Trial Court is justified to the extent of awarding the damage at the rate of Rs. 15/- per day.