RATAN LAL Vs. HARI SHANKER

JUDGEMENT

(1.) This is a second appeal by the plaintiffs. Plaintiffs' suit for permanent injunction and in the alternative for partition of a house and mesne profit has been dismissed by both the courts below. The suit property is a Chabutra. The trial court after considering the evidence on record held that the plaintiffs could not prove the alleged ancestral nature of the property or even its partition and the disputed Chabutra being allotted to their share. He also held that the plaintiffs were never in possession thereof and the defendants had been in exclusive and adverse possession of the suit property. The trial court dismissed the suit, for the plaintiffs failed to prove their title and possession over the property in suit.

(2.) The lower appellate court on an appraisal of the evidence on record and after considering the contentions raised by the learned counsel for the plaintiffs held that the plaintiffs could not prove that the suit property ever pertained to any joint ancestral house of the parties or that on a partition it was allotted to their exclusive share. They also failed to prove that they were in possession of the suit property. The court further found that the defendants' evidence proved that their ancestors had been in exclusive and adverse possession over the suit property for a period more than 12 years preceding the suit and had thus prescribed an absolute proprietary title. Consequently, the appeal was dismissed, and the judgment and decree of the trial court was affirmed.

(3.) Learned counsel for the appellants raised three contentions: Firstly; that the document of partition Ex. 1 was not compulsorily registerable. He urged that this was a document executed in 1897, and provisions of the Registration Act, 1908 had no application to it. The Registration Act, 1908 did not come into play, but there were earlier Registration Acts of the year 1871 and 1877. It could not be shown that the provisions analogous to Section 49 of the Registration Act, 1908 were not there in the previous Registration Acts. This contention was never raised in the court below, and I find no merits in this contention.