Shantilal (Died) Through LRs Vs Nemichand Dead Through Lrs Shanti Bai and Others

¶1

1

¶2

2024:CGHC:39120

¶3

Digitally signed by REKHA SINGH

¶4

AFR

¶5

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶6

FA No. 38 of 2009

¶7

1 - Shantilal (Died) Through Lrs As Per Honble Court Order Dated 14-012021 And 06-12-2023. Defendant No.1

¶8

1.1 - Smt. Patashi Bai Jain W/o Late Shantilal Jain Aged About 72 Years R/o Mahaveer Kirana Store, Shedev Nagarm, Kaurinbhata Tahsil And District Rajnandgaon, Chhattisgarh.

¶9

1.2 - Shri Rajesh Kumar Jain S/o Late Shantilal Jain Aged About 55 Years R/o Mahaveer Kirana Store, Shedev Nagarm, Kaurinbhata Tahsil And District Rajnandgaon, Chhattisgarh.

¶10

1.3 - Shri Hulash Chand S/o Late Shantilal Jain Aged About 50 Years R/o Mahaveer Kirana Store, Shedev Nagarm, Kaurinbhata Tahsil And District Rajnandgaon, Chhattisgarh.

¶11

1.4 - Shri Naresh Jain S/o Late Shantilal Jain Aged About 44 Years R/o Mahaveer Kirana Store, Shedev Nagarm, Kaurinbhata Tahsil And District Rajnandgaon, Chhattisgarh.

¶12

1.5 - Lila Jain D/o Late Shantilal Jain Aged About 47 Years R/o Mahaveer Kirana Store, Shedev Nagarm, Kaurinbhata Tahsil And District Rajnandgaon, Chhattisgarh.

¶13

... Appellants

¶14

versus

¶15

1 - Nemichand Dead Through Lrs Shanti Bai And Others Cg

¶16

1.1 - (Died And Deleted) Shanti Bai As Per Honble Court Order Dated 21-03-2024.

¶17

1.2 - Bhikhamchand S/o Late Nemichand, Aged About 50 Years R/o 21 Perumal Coil Garden Street, 1st Lane, Chennai- 79

¶18

1.3 - Sumerchand S/o Late Nemichand Aged About 45 Years R/o 21 Perumal Coil Garden Street, 1st Lane, Chennai- 79

¶19

2 - (Died And Deleted) Geetabai As Per Honble Court Order Dated 2103-2024.

¶20

-2-

¶21

3 - Vijay Raj Nahar S/o Late Harakhchand Jain, Aged About 57 Years R/o Rugdn, District Nagour Rajasthan, District : Nagaur, Rajasthan

¶22

4 - Smt. Sushila W/o Shri Jeevanlal Betala, Aged About 62 Years R/o 52, Adiyappan Naykar Street, Chennai- 79 .................Defendants, District : Chennai, Tamil Nadu

¶23

…. Respondents

¶24

(Cause-title taken from Case Information System)

¶25

For Appellants/Defendants	: Mr. B.P. Sharma, Senior Advocate
	along with Mr. M.L. Sakat, Advocate
	and Ms. Sameeksha Gupta,
	Advocate
For Respondents/plaintiffs	: Mr. Siddharth Shukla, Advocate

¶26

Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

¶27

03.10.2024

¶28

The Appellant/Defendant No.1 namely, Shantilal Jain has assailed the judgment and decree passed by the learned Additional District Judge, FTC Rajnandgaon (C.G.), in Civil Suit No.25-A/2007 dated 19.01.2009 whereby, the suit filed by the original plaintiff for possession of the suit property was decreed.

¶29

The original plaintiff and original defendants No.1, 2 and 3 are real brothers. Defendant No.4 is the sister. The suit property presently recorded as Survey No.93/5 admeausring 0.20 acre, situated at Village Korinbhata, Rajnandgaon, District Rajnandgaon (C.G.) was recorded in the name of Vijay Raj Nahar/defendant No.3 and Harakchand Jain, his father. After the death of Harakchand Jain, the suit property got recorded in the names of the original plaintiff and original defendants No.1 to 3. A partition deed was reduced into writing on 10.12.1973 and the suit property fell in share of the original plaintiff. The contents of the deed executed on 10.12.1973 are as under:-

¶30

3

¶31

(i) Gulabchand, Shantilal and Vijay Raj would be shareholders of the property situated in Topan, Madras and Roon. The rooms of the house of Bhawarlalji Nahar, area 30 feet long, front and rear veranda, a well and open plot, except rear veranda of 8 feet would be in the share of the brother Nemichand.

¶32

(ii) The property situated at Rajnandgaon including the house, shops and transactions would be in the share of Nemichand.

¶33

(iii) Three brothers would give Rs.41000/- to Nemichand and the property of aunt and mother would be divided equally between the brothers. A note was also appended subsequently which was reduced into writing by one Kevalchand Jain and according to this note, all four brothers without any influence, addiction, in a fit state of mind and without any pressure admitted the partition. All brothers also signed it.

¶34

Ex. P/2, a declaration deed was executed by Patashi Bai, mother of the original plaintiff and original defendants No.1 to 3. According to this document, a decision was taken in the year 1973 to part with Nemichand from the joint family. It is also stated in the document that Rs.41,000/and the rooms situated at Topan were not given to Nemichand. It is further stated that Nemichand got the property of Rajnandgaon in partition.

¶35

The plaintiff further pleaded that the total area of Survey No.93/3 (at present Survey No.93/5) was 3.18 acres and 2.98 acres of land was sold by the original plaintiff through a registered sale deed with consent of original defendants No.1 to 3. The suit land is Survey No.93/5 admeasuring 0.20 acres. It is further pleaded that the suit land was given to the plaintiff as per family arrangement but his name could not be entered into the revenue records. It is also pleaded that at the time of recording the family arrangement, all brothers were present. It is further pleaded that in the year 1986, the wife of defendant No.1 was permitted to stay in the suit house and

¶36

-4-

¶37

keys of the suit house were handed over on the instance of the original plaintiff by one Mangal Chand Jain. In the year 1990, original defendant No.1 was also permitted to reside in the suit house. The original plaintiff had moved an application for mutation before the Tehsildar and vide order dated 10.05.1994 he was advised to approach the competent Civil Court. It is also pleaded that the original plaintiff alone had the right over the suit property pursuant to the family arrangement Ex.P/1.

¶38

Defendant No.1/Shantilal Jain alone filed the written statement and denied the plaint averments. The partition deed executed between the original plaintiff and original defendants No.1 to 3 was also denied. Defendant No.1/Shantilal Jain further pleaded that the original plaintiff has not pleaded about partition between the family members and no description of property or beneficiaries of the partition was pleaded. It is also pleaded that details of the sale of the property have not been given in the plaint. The pleading concerning the construction of rooms was also denied. It is also stated that there was no need to get permission either from the original plaintiff or Mangalchand Jain to stay in the suit house. It is also pleaded that the co-owner/sister has not been arrayed as a defendant and thus, there is non-joinder of the parties; proper Court fee has not been paid; the original plaintiff has not filed suit for declaration and in the absence of any right over the property, the suit seeking relief of possession alone is not maintainable. It is also pleaded that since the property was not partitioned between the family members, the suit for possession is not maintainable. The original plaintiff examined Nemichand Nahar (witness of Ex.P/1), PW1, Kevalchand Nahar PW2, Dr. Sunanda Dhenge, (handwriting expert) PW3, the plaintiff/Nemichand Jain (PW4), and Shanti Lal Katariya (PW5). The plaintiff exhibited Ex.P/1 partition deed, Ex.P/2 declaration deed, Ex.P/3 specimen

¶39

5

¶40

signature of Shanti Lal Nahar, Ex.P/4 report of the handwriting expert, Ex.P/7 notice to defendant No.1/Shantilal Jain to vacate the suit premises, Ex.P/13 rin pustika, Ex.P/17 the sale deed executed by the original plaintiff pertaining to survey No.93 admeasuring 2.98 acres, Ex.P/18 power of attorney executed by original defendants No.1, 2 & 3 pertaining to survey No.93/1 & 93/3 dated 01.11.1974 and Ex.P/18A another power of attorney.

¶41

Defendant No.1/Shantilal Jain examined himself as DW1 and Trilok Chand Beit (DW2). Defendant No.1 exhibited Ex.D/1 reply to legal notice, Ex.D/2 power of attorney and Ex.D/3 sale deed executed by one Shankarlal in favour of the original plaintiff by defendant No.1/Shantilal Jain pertaining to part of Survey No.93 admeasuring 2.50 acres of land and other revenue documents.

¶42

Learned Trial Court framed issues and held that Ex.P/1 is a family arrangement and it does not require registration; survey No.93/3 admeasuring 3.18 acres fell in the share of the original plaintiff, who sold 2.98 acres and remaining 0.20 acres is the suit property; the original plaintiff could not prove the fact that two rooms were constructed over the suit property; the wife of defendant No.1/Shantilal Jain was staying in the suit house with the permission of the original plaintiff; in the year 1990 defendant No.1 also entered in the suit house with the permission of the original plaintiff; on 28.02.1997 the original plaintiff withdrew his permission and from that date, defendant No.1 became an encroacher; the original plaintiff is entitled to get damages to the tune of Rs.13,000/- from defendant No.1; the suit house was not got constructed by defendant No.1 in the year 1980; defendant No.1 has not perfected his right as per the law of adverse possession; the appeal is within limitation and finally the learned Trial Court decreed the suit.

¶43

-6-

¶44

7) Mr. Sharma, the learned counsel appearing for the appellant/defendant No.1 would submit that Ex.P/1 is an unregistered partition deed. He would further contend that the nomenclature as well as the contents of the documents would show that it was a partition deed of immovable property between the original plaintiff and original defendants No. 1 to 3. It is argued that according to Section 17 of the Registration Act, it requires registration and in the absence of registration, the document is not admissible in evidence. It is also contended that an objection was raised with regard to the admissibility of the document at the time of evidence but later on, the same was turned down by the learned Trial Court. He would further argue that the power of attorney Ex.P/18 would show that survey No.93/3, new survey No.93/5 admeasuring 3.18 acres was recorded in the names of the original plaintiff and defendants and according to this document, the original plaintiff had the right up to half share of that property but he sold 2.98 acres of the property with the consent of original defendants No.1 to 3. He would further submit that the original plaintiff had no right over the remaining 0.20 acres of land of survey No.93/3, new survey No.93/5. It is also submitted by Mr. Sharma that even for collateral purposes, the document Ex.P/1 cannot be used in evidence. He would further state that the original plaintiff failed to prove the fact that the suit property ever remained in his possession. It is also stated that the witness, namely, Shanti Lal Katariya (PW5) has stated that the keys of the suit house were handed over to the wife of defendant No.1/Shantilal Jain in the year 1986 and based on such statement, it cannot be presumed that original plaintiff had possession of the suit property. In support of his submissions, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, 2009

¶45

7

¶46

(2) SCC 532 and Omprakash V. Laxminarayan and others, 2013 AIR SCW 5826 .

¶47

8) On the other hand, Mr. Shukla, the learned counsel appearing for the plaintiff would oppose the submissions made by Mr. Sharma. He would submit that the learned Trial Court has passed a well-reasoned judgment. He would contend that Ex.P/1 is the family arrangement and it is a memorandum of partition recorded between the original plaintiff and original defendants No.1 to 3 in the presence of witnesses. He would further submit that the original plaintiff in his evidence has categorically stated that the suit property was in his share and as he was residing in Madras, therefore, keys of the suit house were handed over to Mangalchand Jain and after his death, the keys were given to his younger brother Shanti Lal Katariya. He would also submit that the evidence of Shanti Lal Katariya (PW5) would make it clear that the suit house was in possession of the original plaintiff and on his instance, keys were handed over to the wife of defendant No.1/Shantilal Jain in the year 1986. He would further contend that in the year 1990, defendant No.1 was also permitted to stay in the suit house. He would refer to various judgments and submit that if Ex.P/1 requires registration even then it can be looked into in evidence for collateral purposes. He would also contend that Ex.P/1 was a family arrangement or memorandum of partition and there was no requirement of registration of such document. In support of his submissions, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matters of Tek Bahadur Bhujil Vs. Debt Singh Bhujil and others, AIR 1996 SC 292, Roshan Singh and others Vs. Zile Singh and others, 2018 (14) SCC 814 and Korukonda Chalapathi Rao and another Vs Korukonda Annapurna Sampath Kumar, 2022 (15) SCC 475.

¶48

-8-

¶49

I have heard the learned counsel appearing for the parties and perused the record.

¶50

In the matter of Avinash Kumar Chauhan (supra) , the Hon’ble Supreme Court has held that for all purposes, the document which is sought to be brought in evidence would not be admissible for collateral purposes. Relevant para is reproduced herein below:-

¶51

“25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes.”

¶52

With regard to the recital of the document, the Hon’ble Supreme Court in the matter of Omprakash (supra) , held that for determination of the question of admissibility of a document, it is the recital therein which shall be decisive. The relevant para is reproduced herein below:-

¶53

“9.As stated earlier, the plaintiffs filed a suit for specific performance of contract and their case is founded on the agreement to sell executed on 27th December, 2000. The agreement to sell acknowledges payment of the part of consideration money and further giving actual physical possession to the purchaser by the seller. Though the defendants dispute that, but in our opinion, for determination of the question of admissibility of a document, it is the recital therein which shall be decisive. Whether the possession in fact was given or not in terms of the agreement to sell is a question of fact which requires adjudication. But, at the time of considering the question of admissibility of document, it is the recital therein which shall govern the issue. It does not mean that the recital in the document shall be conclusive but for the purpose of admissibility it is the terms and conditions incorporated therein which shall hold the field. Having said that, we proceed to consider as to whether the document in question is “conveyance” within the meaning of Section 2(10) of the Act. Section 2(10) of the Act reads as follows:

¶54

2. Definitions. -In this Act, unless there is something repugnant in the subject or context, -

¶55

xxx xxx xxx

¶56

(10)“Conveyance” includes a conveyance on sale and every instrument by which property, whether movable or immovable,

¶57

9

¶58

is transferred inter vivos and which is not otherwise specifically provided for by Schedule I;”

¶59

12) In the matter of Tek Bahadur Bhujil (supra), the Hon’ble

¶60

Supreme Court in paras 6,16 & 17 held as under:-

¶61

“6.The two questions urged in this appeal on behalf of the appellant are (i) that the agreement Exhibit 3 does not amount to a family arrangement; (ii) that if it does amount to a family arrangement, it required registration.

¶62

16.In support of the contention that the agreement Exhibit 3 requires registration, reliance is placed on what was said further in Madho Das's case, , which reads:

¶63

"But, in our opinion, the principle can be carried further....we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges, that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.

¶64

The legal position in such a case would be this. The arrangement or compromise would set out and define that the title claimed by A to all the properties in dispute was his absolute title as claimed and asserted by him and that it had always resided in him. Next, it would effect a transfer by A to B, C and D (the other members to the arrangement) of properties X, Y and Z; and thereafter B, C and D would hold their respective titles under the title derived from A. But in that event, the formalities of law about the passing of title by transfer would have to be observed, and now either registration or twelve years adverse possession would be necessary."

¶65

17.This Court extended the principle behind the family arrangement to other cases which were not covered by the earlier observations. It is urged, on the basis of these further observations, that registration is necessary for a document recording a family arrangement regarding properties to which the parties had no prior title. These observations apply to a case where one of the parties claimed the entire property and such claim was admitted by the others and the others obtained property from that recognized owner by way of gift or by way of conveyance. In the context of the document stating these facts this Court held the real position to be that the persons obtaining the property from the sole owner derived title to the property from the recognized sole owner and such a document would have to satisfy the various formalities of law about the passing of title by transfer. The facts of the

¶66

-10-

¶67

present case arc different. The agreement, Ex. 3, does not recognize that any of the brothers had the sole and absolute title to any of the properties dealt with by them. On the other hand the recitals in the document indicate that the three brothers considered the property to be joint property of all of them. The fact that in the present proceedings the evidence shows that the landed property at Mawprem was purchased from the moneys of the mother does not affect the nature of the arrangement arrived at between the three brothers.”

¶68

In the matter of Roshan Singh (supra) , the Hon’ble Supreme

¶69

Court in paras 6,7 & 15 held as under:-

¶70

“6.In support of the appeal, Shri S.N., Kacker, learned counsel for the appellants has mainly contended that the document Exh. P-12 is an instrument of partition and therefore required registration under s. 17 of the Act. It is urged that the High Court has on a misconstruction of the terms wrongly construed it to be a memorandum of family arrangement and admissible for the collateral purpose of showing nature of possession under the proviso to s. 49 of the Act. In substance, the submission is that the document does not contain any recital of a prior, completed partition but on its terms embodies a decision which is to be the sole repository of the right and title of the parties i.e. according to which partition by metes and bounds had to be effected. We regret, we find it rather difficult to accept the contention.

¶71

7.In order to deal with the point involved, it is necessary to reproduce the terms of the document Exh. P-12 which read:

¶72

"Today after discussions it has been mutually agreed and decided that house rihaishi (residential) and the area towards its west which is lying open i.e. the area on the back of rihaishi (residential) house has come to the share of Chaudhary Pooran Singh Jaildar.

¶73

2.House Baithak has come to the share of Chaudhary Soonda. The shortage in area as compared to the house rihaishi and the open area referred to will be made good to Chaudhary Soonda from the filed and gitwar in the eastern side.

¶74

3. Rest of the area of the field and gitwar will be half and half of each of co-shares. The area towards west will be given to Chaudhary Pooran Singh and towards east will be given to Chaudhary Soonda.

¶75

4. Since house rihaishi has come to the share of Chaudhary Pooran Singh therefore he will pay Rs.3000 to Chaudhary Soonda.

¶76

5. A copy of this agreement has been given to each of the co-shares.

¶77

15. This view was adopted by the Privy Council in subsequent decisions and the High Courts in India. To the

¶78

11

¶79

same effect is the decision of this Court in Sahu Madho Das & Ors. V. Pandit Mukand Ram & Anr. [ 1955] 2 SCR 22. The true principle that emerges can be stated thus: If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of s. 17 read with s. 49 of the Registration Act as no interest in property is created or declared by the document for the first time. As pointed out by this Court in Sahu Madho Das' case, it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary.”

¶80

14) In the matter of Korukonda Chalapathi Rao (supra) , the Hon’ble

¶81

Supreme Court in paras 27,32 & 33 held as under:-

¶82

“27.The proviso carves out two exceptions. We are only concerned, in this case, with only one of them and that is contained in the last limb of the proviso. The unregistered document can be used as evidence of any collateral transaction. This is however subject to the condition that the said collateral transaction should not itself be one which must be effected by a registered document. It is this expression contained in the proviso which leads us to ask the question as to what would constitute a collateral transaction. If it were collateral transaction, then an unregistered document can indeed be used as evidence to prove the same. Would possession being enjoyed or the nature of the possession on the basis of the unregistered document, be a transaction and further would it be a collateral transaction? We pose this question as the contention of the appellants is that even if the Khararunama dated 15.4.1986 cannot be used as evidence to prove the factum of relinquishment of right which took place in the past, the Khararunama can be looked into to prove the conduct of the parties and the nature of the possession which was enjoyed by the parties.

¶83

32. We may also usefully refer to the views expressed by the Division Bench of the Madras High Court in K. Panchapagesa Ayyar and Ors. v. K. Kalyanasundaram Ayyar and Ors.12:

¶84

“49. To sum up it is well settled in a long series of decisions which have since received statutory recognition by the Amending Act of 1929 (vide the concluding words of the new proviso to Section 49 of the Registration Act) that a compulsorily registrable but an unregistered document is admissible in evidence for a

¶85

-12-

¶86

collateral purpose that is to say, for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. 12 AIR 1957 Madras 472

¶87

The expression "collateral purpose" is no doubt a very vague one and the Court must decide in each case whether the purpose for which it is sought to use the unregistered document is really a collateral one or is to establish directly title to the immovable property sought to be conveyed by the document. But by the simple device of calling, it a "collateral purpose" a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect which it would have had if registered.

¶88

To quote Sir George Lowndes in James R. R. Skinner v. Robert Hercules Skinner ILR 51 All 771: MANU/PR/0091/1929 : AIR 1929 PC 269 (Z 22) the collateral purpose to which the document is put should be nothing else than an evasion of the statute and render almost nugatory the hitherto well-established rule relating to the limited uses to which an unregistered partition deed can be put to.” (Emphasis supplied)

¶89

31. In Roshan Singh and Others v. Zile Singh and Others13, the question arose whether Exhibit P12 in the said case was an instrument of partition and therefore inadmissible for want of registration under Section 49 of the Registration Act or whether it was merely a AIR 1988 SC 881 memorandum of family arrangement. This Court after referring to the document held as follows:

¶90

“8. According to the plain terms of the document Exh. P- 12, it is obvious that it was not an instrument of partition but merely a memorandum recording the decision arrived at between the parties as to the manner in which the partition was to be effected. The opening words of the document Exh. P-12 are: 'Today after discussion it has been mutually agreed and decided that....' What follows is a list of properties allotted to the respective parties. From these words, it is quite obvious that the document Exh. P- 12 contains the recital of past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated. So also the Panch Faisla Exh. P-1 which confirmed the arrangement so arrived at, opens with the words 'Today on 31-1-1971 the following persons assembled to effect a mutual compromise between Chaudhary Puran Singh and Chaudhary Zile Singh and unanimously decided that....' The purport and effect of the decision so arrived at is given thereafter. One of the terms agreed upon was that the gher marked B2 would remain in the share of Zile Singh, representing the Plaintiffs.

¶91

13

¶92

9. It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1) (b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well-settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1) (b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondly evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition.”

¶93

With regard to the contention raised by Mr. Shukla that document Ex.P/1 is not a partition deed but is a memorandum of partition or family arrangement as the same was reduced into the writing on the basis of possession of the original plaintiff and original defendants No.1 to 3, cannot be accepted on the following grounds:-

¶94

(i) The nomenclature of the document clearly denotes

¶95

that it is a partition deed;

¶96

(ii) this document does not talk about the previous/past partition;

¶97

(iii) a decision was also taken to give Rs.41,000/- to

¶98

-14-

¶99

Nemichand Jain by three brothers;

¶100

(iv) a note appended to this document clearly states that it was recorded in the presence of the witnesses

¶101

and the beneficiaries were in a fit state of mind.

¶102

Therefore, it can safely be held that it was a partition deed and according to Section 17 of the Registration Act, it requires registration.

¶103

Ex.P/18, which is a power of attorney executed by original defendants No.1 to 3 in favour of the original plaintiff, would reveal that survey No.93/3 admeasuring 3.18 acres was recorded in the names of all brothers and the share of the original plaintiff was 1/2, meaning thereby, as admitted by the original plaintiff in the plaint and in evidence that he sold 2.98 acres of land with the consent of defendants No.1 to 3. Thus when the original plaintiff had already sold more than 50% of the property in breach of Ex.P/18, therefore, his claim over remaining 0.20 acres of land appears to be baseless.

¶104

In the present suit, the defendants have denied the plaintiff’s title and possession over the suit property. A cloud was raised by the defendants over the plaintiff’s right to possession. The original plaintiff had filed the suit for possession. It is a well-settled principle of law that where the plaintiff’s title is in dispute or under a cloud and he is out of possession too, he has to sue for declaration of title and possession. The Hon’ble Supreme Court in the matter of Anathula Sudhakar Vs. P. Buchi Reddy (dead) by Lrs. and others, 2008 (4) SCC 594 in para 21 observed and held as under:-

¶105

“21 . To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

¶106

15

¶107

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

¶108

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

¶109

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

¶110

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.

¶111

But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

¶112

-16-

¶113

The judgment cited by the learned counsel appearing for the defendants would show that a document which requires registration, if not registered, can be considered for collateral purposes but present is not a case where the document Ex.P/1 can be considered either for collateral purposes or for any other purposes when the original plaintiff could not prove his right and claim relief of declaration over the suit property, whereas defendant No. 1 has specifically denied the title of the plaintiff over the suit property and the same is also evident from Ex. P/18, power of attorney.

¶114

The judgment rendered in the matters of Avinash Kumar Chouhan (supra) and Korukonda Chalapathi Rao (supra) was passed by the bench of equal strength. The first one was pronounced on 17.12.2008 whereas the second judgment was pronounced on 01.10.2021. The Hon’ble Supreme Court in the matter of Union Territory of Ladakh & Others V. Jammu & Kashmir National Conference & Another, reported in 2023 SCC Online SC 1140 held that the earlier judgment on the issue will prevail if the same has not been considered in subsequent judgment. The relevant para is as under:-

¶115

“35. We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later Coordinate Bench has doubted its correctness. In this regard, we lay down the position in law. We make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands. It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench. In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts, as held by a 5 judge Bench in National Insurance Company Limited V. Pranay Sethi, 2017 (16) SCC 680. The High Courts, of course, will do so with careful regard to the facts and circumstances of the case before it.”

¶116

Taking into consideration the law laid down by the Hon’ble

¶117

17

¶118

Supreme Court and the facts discussed above, in the opinion of this court, the learned Trial Court has committed an error of law in decreeing the suit. Consequently, the judgment and decree passed by the learned Trial Court is hereby set aside. The appeal is allowed accordingly. No order as to cost(s).

¶119

A decree be drawn accordingly.

¶120

Sd/-

¶121

(Rakesh Mohan Pandey) Judge

¶122

Rekha

Shantilal (Died) Through LRs v. Nemichand Dead Through Lrs Shanti Bai and Others

Case brief

What is this about?

What did the court decide?

Shantilal (Died) Through LRs v. Nemichand Dead Through Lrs Shanti Bai and Others

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Prop. Gourishankar Rice Mill Vs Shiv Kumar Agrawal

Panchram Vs Danujari and Another

Shri Satyanarayan Mandir Samiti Vs (Deleted) Akshaya Kumar (Died) Through Lrs.

Rakesh Tatiya Vs Raja Saluja

Sukhlal and Ors. Vs Mahesiya and Ors.

Vivek Singh Thakur Vs State of Chhattisgarh