MAN SINGH Vs. BIMLA DEVI AND OTHERS

JUDGEMENT

(1.) The appellant-plaintiff is in regular second appeal against the concurrent findings of fact, whereby the claim laid to the suit for partition by setting aside the order of Collector dated 30.03.1976 and agreement to sell dated 12.08.1973, had been dismissed by the trial Court and affirmed by the lower Appellate Court.

(2.) Succinctly, the facts as enumerated from the pleadings of the parties to the lis are that the plaintiff instituted the suit on the premise that Shiv Singh, brother of the plaintiff, had died and the defendants were his LRs. The parties were co-sharers in possession of the agricultural land (suit land). The plaintiff filed an application for partition of the suit land in the Court of Assistant Collector Grade-I, which was allowed vide order dated 21.11.1975. Shiv Singh, husband of respondent/defendant No.1 and father of respondent/defendant Nos.2 & 3 preferred an appeal as the question of title was involved in view of the agreement of partition dated 12.08.1973. The Collector vide order dated 30.03.1976 allowed the appeal holding that the question of title was involved. The order of the Collector was affirmed by the Commissioner vide order dated 10.12.1976. The aforementioned orders were challenged on the premise that the agreement to sell dated 12.08.1973 involved the partition of immovable property and it required compulsorily registration under Section 17(1) (b) of the Indian Registration Act. It was not attested by any attesting witness nor was ever acted upon, for, there was another agreement dated 03.08.1975 in respect of immovable property mentioned in the agreement dated 12.08.1973. The agreement ibid had become time barred and the period of limitation i.e. 3 years for execution had lapsed. Even Shiv Singh had sold land measuring 7 kanals 19 marals, which is liable to be adjusted at the time of partition.

(3.) The aforementioned suit was contested by the defendant Nos.2 and 3, whereas defendant No.1 was proceeded ex parte. It was alleged that in 1973, joint properties of plaintiff and Shiv Singh were partitioned i.e. khasra number 186 was allotted to Shiv Singh, whereas khasra No.188 to the plaintiff. The memorandum of agreement was also signed by parties on 12.08.1973, thereafter had been exclusive owners in possession of respective khasra numbers. The writing was memorandum of previous partition, therefore, it did not require any registration nor attestation. In fact it had been acted upon.