BABULAL Vs. ADDITIONAL DISTRICT AND SESSIONS JUDGE LAXMANGARH

JUDGEMENT

(1.) Challenge in this writ petition is to the order dated 4th May, 2011, whereby the learned Additional District Judge, Laxmangarh, District Alwar, did not allow the petitioner-defendant to mark exhibit on the partition deed, as the same was not registered under the Registration Act, 1908.

(2.) Adumbrated in brief, the facts of the case leading to the writ petition are that the plaintiffs-respondents filed a suit for partition stating that one property situated at village Badoda Mev, Tehsil Laxmangarh, District Alwar, was the joint property. It was further averred that the parties to the suit were members of one family. Both the parties were the legal descendants of common ancestor Bohara and the property in dispute belonged to deceased Bohara on which plaintiffs' father Badri and defendant Babu lal resided jointly. It is also alleged in the plaint that Badri Prasad and defendant Babu lal had partitioned their properties by their mutual consent and out of the total property, one Haveli came in possession of the plaintiffs' father and other Haveli came in possession of the defendant and thus, there was no dispute about these two Havelis, as they stood partitioned and were in possession of both the plaintiffs and defendant, separately. It is further averred that there was some disputed property, which was not partitioned and kept by both of them in a joint property pool. The father of the plaintiffs and the defendant, jointly constructed six shops and two rooms. They were constructed in such a manner that they could easily be partitioned. These shops were also let out on rent jointly by them and plaintiff no. 3 had been running a tea stall in one shop for the last ten years. It is alleged that about five years back, plaintiffs' father expired and thereafter, the defendant started raising obstruction in the use of joint possession of shops.

(3.) The petitioner-defendant denied the averments made in the plaint and contended in Para 3 of the reply specifically that the partition of entire property had already taken place in writing on 13th August, 1964 in the presence of Kalyan Sahai and witnesses namely Pyare lal Mahajan, Mangal Chand Mahajan, Madho Prasad and Girraj Prasad and since then, the disputed property has been in possession of the defendant and they are the exclusive owner of the said shops.