RAJNI BAJAJ Vs. RAM PIARI

JUDGEMENT

(1.) THIS is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of fact recorded by both the Courts below holding the plaintiff- respondent Ram Piari was entitled to possession by way of partition to the extent of 1/4th share in the property left by her son Goverdhan Kumar who died in-testate leaving behind his father Dr. Gopal Dass, defendant-appellants Rajni, widow and two minor daughters Rosy and Archana. The plea set up by the defendant-appellants has been that plaintiff-respondent Ram Piari was not owner in possession of the property in dispute and 1/4th share which she has relinquished in favour of the defendant-appellants. In this regard a reference was made to a decree Ex. D-1 dated 21.3.1989 allegedly suffered by plaintiff- respondent Ram Piari in favour of the defendant-appellants. However, both the Courts below have found that the defendant-appellants have failed to prove that Ram Piari plaintiff-respondent ever suffered any decree like Ex. D-1 dated 21.3.1989 in their favour. The file of Civil Suit No. 2 of 1989 wherein consent decree Ex. D-1 was passed had never been summoned nor the statement made by Ram Piari in the aforementioned file has ever been produced. In this circumstances, tendering of a certified copy of the judgment and decree Ex. D-1 has not been considered sufficient to record a finding that the plaintiff-respondent actually suffered a decree in favour of the defendant- appellants.

(2.) IT has further been found that in any case, such a decree like Ex. D-1 would not result into fructification of any right because no pre-existing rights through the family settlements were proved by leading cogent evidence. It, therefore, has led to the conclusion that the rights were created for the first time through consent decree under Section 17 of the Registration Act, 1908 (for brevity, 'the Act') which envisages that any property worth more than Rs. 100/- was required to be registered compulsorily. In that regard, reliance has been placed on a judgment of the Supreme Court in the case of Bhoop Singh v. Ram Singh Major and others, 1995(3) RRR 541 (SC) : 1995(5) SCC 709. The aforementioned judgment has been applied to the facts of the present case particularly when Rajni Bajaj defendant-appellant appeared in the witness box as DW-1 has stated that she would produce the family settlement which has been recorded in black and white. However, the family settlement did not see the light of the day which also resulted in an adverse inference that there was no such family settlement in existence and there were no pre-existing rights, even if the consent decree Ex. D-1 was presumed to have been suffered by the plaintiff-appellant.