NIRMAL SINGH Vs. GURBACHAN SINGH

JUDGEMENT

(1.) Gurbachan Singh first moved the Revenue Court for partition of 69 Kanals 10 Marlas of land situate in village Hayat Nagar against Sadhu Singh's representatives on the plea that he was the owner of half share, according to the Jamabandi for the year 1969-70, and when the Revenue Court directed him to get his title decided in civil Court, this suit was filed.

(2.) The legal representative of Sadhu Singh contested the suit and pleaded that the plaintiff and Sadhu Singh acquired land in two villages. Hayat Nagar and Garden Colony Khojepur (Bhabra), and there was partition between them, regarding memorandum dated 3-7-1958 was recorded and since then the parties are in exclusive possession of their respective portions. The land of village Hayat Nagar along with small area of the other village was given to Sadhu Singh and the remaining to the plaintiff. The plaintiff later on exchanged his land with another person in village Hayat Nagar. On this basis, it was pleaded that he was estopped by his act and conduct to seek partition.

(3.) The trial Court by a well considered judgement and decree hold on appreciation of evidence that the partition was duly proved. The parties were in separate possession of the land allotted in partition of 1958 and in 1973 vide Exhibit D1, the plaintiff had exchanged the land allotted to him in village Bhabra, considering the same to be his own. The trial Court also referred to Rikhi Ram v. Sada Ram, AIR 1977 Punj and Har 94 and came to the conclusion that the unregistered document of partition marked A could not be read in evidence as a document of partition, but could be seen to find out the factum of partition and the nature of possession. Since the partition was proved from other evidence on record, i.e. from the statement of DW 1 to DW 4 coupled with the exchange made by the plaintiff himself, the trial court dismissed the suit for partition. On plaintiff's appeal the lower appellate Court, read the Rikhi Ram's case (supra) in a slightly different way and without reference to the oral evidence of partition, the exchange made by the plaintiff and the other facts and circumstances on the record, held that since there was no other evidence on record the document marked `A' was excluded out of consideration as it required registration and further held that the partition was not proved, and, therefore, allowed the appeal and decreed the suit. This is defendants' second appeal.