RAGHUNATH SAHAI Vs. DULI CHAND

JUDGEMENT

(1.) This Regular Second Appeal has been filed by the plaintiff challenging the judgment of the trial Court dated 21.9.1979 passed by Sub-Judge 1st Class, Gohana, in Civil Suit No. 173 of 31.8.1979 and the judgment of the lower Appellate Court, Shri Krishan Dant Aggarwal, Additional District Judge, Sonepat in Civil Appeal No. 2/13 of.1980 by judgment dated 15.2.1982 confirming the judgment and decree passed by the trial Court.

(2.) Learned counsel for the appellant submits that both the judgments of the courts below are contrary to the well-settled principle any 'right in written instrument could create/alienate any right in immovable property of the value of Rs. 100/- or upwards unless the same is registered under the Registration Act, 1980. In support of his submission, he has relied upon the judgment of the Supreme Court in Bhoop Singh v. Ram Singh Major and others, 1996 AIR(SC) 196 It is not disputed that Raghu Nath Sahai, plaintiff-appellant, Duli Chand defendant No. 1 and Purshotam, defendant No. 2, are real brothers. Defendant No. 3 Mange is a stranger to the parties. The plaintiff claimed that they are brothers and were owners of four shops situated at Gohana, description of which has been given in the plaint. The shops have been described in the map attached with the plain as ABCD. The three brothers are co-owners of the shops, each one of them having 1/3rd undivided share. According to defendant Nos. 1 and 2, there was a partition of the joint property on 6.7.1972 between the brothers and their father Geneshi Lal acted as referee in the partition proceedings. The father had given an award in writing with the consent of the parties. The plaintiff was given shop No. 2 and a big house situated in Mehmudpur. On the other hand, shop No. 1 with a small house was given to defendant No. 2. Similarly, shop Nos. 3 and 4 were given to defendant No. 1. According to the defendants, since 8.8.1972 all the three brothers had been in possession of their respective properties. Defendant No. 1 Duli Chand sold the shop which came to his share to defendant No. 3 Mange Ram on 8.9.1977 being the sole owner of the shop. It was the case of the plaintiff that his signatures on the award dated 8.8.1972 and on the partition deed dated 12.8.1975 had been obtained by mis-representation or coercion. The plaintiff had also taken the plea that the aforesaid documents were false and fabricated. He pleaded that as such, there was no partition. Therefore, he had filed a suit for seeking partition. Mange Ram, defendant No. 3 had taken the plea that he had purchased the shop from Duli Chand defendant No. 1, who was shown as the owner of the shop after making due enquiry. The trial Court framed the following issues :-

(3.) The trial Court after discussing the entire evidence, decided issue No. 1 against the plaintiff. The trial Court after considering the entire evidence has come to the conclusion that even without the two documents dated 8.8.1972 and 12.8.1975, there was sufficient evidence on the record to show that the parties were in exclusive possession of the shops as mentioned in the unregistered documents. It has been held by the trial Court that there is no evidence in support or the allegation of mis-representation, coercion or fraud. On the other hand, there is independent evidence of Mam Chand DW. 2 scribe of the agreement Ex D. 3 and of the award supported by attesting witness Devi Ram DW. 3. The evidence given by the deed writer has been corroborated by defendant Nos. 1 and 2 to the effect that the plaintiff and defendant Nos. 1 and 2, the three brothers had voluntarily accepted their father Geneshi Lal as arbitrator for partition of the joint property. The partition had actually been made with the consent of the parties. Only details of the partition are given in Ex.D. 2. The learned trial Court, therefore, held that the partition of the property had been proved by oral and independent evidence on the file. It has also been held by the trial Court that even though the document Ex. D. 2 may be inadmissible in evidence to prove the actual partition of the property but the same would be admissible to prove the possession of the suit property. It has been held that since even otherwise the possession of the parties has been proved by independent oral evidence, the non-registration of the documents becomes immaterial. In support of the aforesaid findings, the trial Court has relied upon a judgment of the Supreme Court in Kale and others v. Deputy Director of Consolidation, 1976 AIR(SC) 807 These findings of the trial Court have been affirmed by the lower Appellate Court.