CHANDRA PRAKASH SONI Vs. DWARKA PRASAD SONI

JUDGEMENT

(1.) BEING aggrieved of the order dated 1-8-2008 passed in Civil Suit no. 69-A/2008 by IIIrd Civil Judge, Class II, Narsinghpur the petitioner has preferred present writ petition under Article 227 of the Constitution of India. By the impugned order the objection raised by the petitioner/defendant in respect of the admissibility of the partition deed on the ground that the same is not registered under Registration Act, 1908 came to be rejected.

(2.) THE facts in nutshell are that the respondent No. 1 has filed a suit for declaration of the entitlement of his share in family property on the basis of family partition, the claim is objected to by other brother, i. e. , the petitioner. The case of the respondent/plaintiff before the Trial Court is that the house property and the immovable property situated at Mouja Kandeli, Narsinghpur was a Joint hindu Undivided property and as per family settlement, the respective members were placed in physical possession of their respective shares in the year 1988-89. In year 1995 the aforesaid settlement was reduced in writing under the nomenclature family settlement. Some dispute however, arose in the year 1997 between the petitioner and respondent in respect of partition wall but the matter came to be settled in family panchayat on 8-11-1997, whereby, both the parties agreed to remain in occupation of their respective shares. Thereafter, in december, 2002 the respondent/plaintiff approached the petitioner requesting him to construct the partition wall as agreed; however, since the petitioner did not accede to the request, the respondent/plaintiff filed the suit in question seeking the declaration to that effect. In said suit an objection was raised by the petitioner/defendant that the family arrangement relied upon by the respondent/plaintiff since was not registered under the Registration Act, 1908, the same cannot be taken in to evidence. The Trial Court, however, while relying upon the judgment of the Apex Court rendered in the case of Devchand and others Vs. Shivram and others, 1970 MPLJ 371, overruled the objection by his order dated 1 -8-2006. It is this order which is under challenge in this writ petition under Article 227 of the Constitution of India.

(3.) CHALLENGING the order it is urged by the learned Counsel for the petitioner/defendant that since the partition in metes and bound was by virtue of partition deed dated 23-2-1995, Annexure P-3, was thus compulsorily registrable, it is urged that the Trial Court was not justified in holding that the deed dated 23-2-1995 was only a memorandum or acknowledgment of a former partition orally made and therefore the non-registration thereof will not be a bar to accept the same in evidence.