Prem Kumar and others Vs Parkash Chand Sharma and others

passed by learned Sub Judge, First Class, Karsog, District Mandi (learned Trial Court) were set aside. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court seeking a permanent prohibitory injunction for restraining the defendant No.1 from raising construction on the joint land described in para-1 of the plaint or obstructing the path leading to the plaintiff's house being used by him since the time of his forefathers. It was asserted that the plaintiff is the co-owner in possession of the suit land. He has an old house. The defendant No.1 started raising the construction of a house adjacent to the plaintiff's house. The construction being raised by defendant No.1 would obstruct the way to the plaintiff's house. The plaintiff requested the defendant No.1 not to do so, but in vain. Hence, the plaintiff filed a suit to seek the relief mentioned above.

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The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, the plaintiff being estopped to file the present suit by his act and

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conduct, the suit having not been properly valued for jurisdiction and Court fees, and the plaintiff having concealed material facts from the Court. The contents of the plaint were denied on the merits. It was asserted that Damodar, Bhawani Dutt and Kameshwar were three brothers. They owned the land in Karsog and Pangna. A compromise was effected between them on 29.06.1978. Damodar relinquished his share in favour of his brothers Bhawani Dutt and Kameshwar, who became the owners of a half share. The plaintiff started building his house in the year 1993. The matter was compromised, and the compromise dated 29.06.1978 was affirmed. The plaintiff is estopped from filing the suit by his act and conduct. The suit was filed without any basis. Hence, it was prayed that the same be dismissed.

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No replication was filed.

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Learned trial Court framed the following issues on

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31.05.1996:

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Whether the plaintiff has got a 1/3rd share in the suit land as alleged? If so its effect? OPP

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Whether the plaintiff is entitled to the decree of permanent prohibitory injunction, as prayed? OPP

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Whether the plaintiff and defendants get ½ share each in the family partition, which is allegedly taken place on 29.06.1978, if so its effect? OPD

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Whether the plaintiff is estopped by his act and conduct from instituting the present suit? OPD

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Whether there is no cause of action accruing in favour of the plaintiff to file the present suit? OPD

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Whether the suit is not maintainable in the present form? OPD

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Relief.

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The parties were called upon to produce the evidence, and the plaintiff examined himself (PW1). The defendant No.1 examined himself (DW1), Khemraj (DW2), Mattidhar (DW3), Tek Chand (DW4), Nanak Chand (DW5), Inder Paul (DW6), Surinder Singh (DW7) and Prem Kumar (DW8). The plaintiff examined Mattidhar Sharma (PW1/R), Roshan Lal PW2/R and Tara Chand PW3/R in rebuttal.

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The learned Trial Court held that the suit land was owned by the plaintiff and the defendants equally. A compromise was effected between the predecessor-in-interest of the parties on 29.06.1978, which was affirmed in a subsequent agreement between the parties. The parties acted in terms of the compromise, and the plaintiff was not entitled to file the suit, violating the terms and conditions of the compromise. Hence, the learned Trial Court answered issue No.3 and 4 in the affirmative,

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issue No.1, 2, 5 and 6 in the negative and dismissed the suit filed by the plaintiff.

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Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal, which was decided by the learned Additional District Judge, Mandi, H.P. The learned Appellate Court framed the following additional issues and remitted the matter to the learned Trial Court for recording the findings:

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6-A Whether the respondent No.1 is raising construction over the suit land as alleged? OPP

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6-B If Issue No. 6-A is proved in the affirmative, whether the respondent is liable to be directed not to cause any obstruction on the path of the house of the appellant, which is being used by the plaintiff from time of their forefather, on both eastern as well as back side as alleged? OPP

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Learned Trial Court held that defendant No.1 had

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started raising construction on the portion of the suit land, but no obstruction was being caused to the plaintiff's house. Hence, the learned Trial Court answered issue No.6-A in the affirmative and issue No.6-B in the negative.

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Learned Appellate Court held that an application for affirmation of the private partition was filed, which was still pending, and the partition had not attained finality. The suit land

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was valuable, and no party could be allowed to usurp the best portion of the suit land. Therefore, the learned Trial Court allowed the appeal and set aside the judgment passed by the learned Trial Court.

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Being aggrieved by the judgment passed by the learned Trial Court, the defendants filed the present appeal, which was dismissed by this Court on 27.05.2004 on the ground that no decree had been passed against the defendants. Ultimately, after many proceedings before the learned Trial Court, this Court and the Hon’ble Supreme Court, a decree was passed by the learned Trial Court on 18.082021.

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Being aggrieved by the judgment and decree passed by the learned Appellate Court, the defendants have filed the present appeal, which was admitted on the following substantial questions of law on 20.05.2026:

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Whether the learned First Appellate Court has misconstrued, misinterpreted and failed to appreciate the sanctity of the binding family partition/arrangement admittedly taken place between the parties on 29.06.1978 (i.e. Ext.DA) and further recorded in the form of Ext.DW2/A) effected between the Predecessor of the Appellants/Defendants and respondents/plaintiffs, qua the suit land on which the parties too had acted upon

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subsequently and thus, rectify the arrangement by their act and conduct by taking benefit of the arrangement?

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Whether the judgments/decree passed by the learned First Appellate Court is perverse as it has misread and misinterpreted the pleadings, evidence, documentary evidence and law in its clear perspective and in accordance with law, which has led to a perverse finding?

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Whether the judgment/decree passed by the Courts below are perverse, as the Courts below have travelled beyond the scope of the pleadings/case and wrongly exercised jurisdiction and indirectly granted relief which was never sought in the suits between the parties?

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I have heard Mr Chander Narayan Singh, learned

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counsel for the appellants and Mr Bimal Gupta, learned Senior Counsel, assisted by Ms Kusum Chaudhary, learned counsel for respondent No.1.

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Mr Chander Narayan Singh, learned counsel for the appellants, submitted that the parties had accepted the compromise dated 29.06.1978, and the learned Appellate Court erred in holding that the land was joint between the parties and no person could have usurped the best portion of the land. Therefore, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside. He relied upon the judgments of the Hon’ble Supreme Court in Tehsildar, Urban Improvement Trust and Anr. vs. Ganga Bai

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Menariya (Dead) through LRs and others 2024:INSC:121 in support of his submission.

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Mr Bimal Gupta, learned Senior Counsel for the respondent No.1, submitted that the compromise was not acted upon by the parties, which is evident from the statement of the defendant No.1 and his witness Surinder Singh. Defendant No.1 has a major share of the suit land, and the plaintiff has a minuscule share of the suit land. Learned Appellate Court had rightly held that a party cannot be permitted to occupy the best portion of the joint land. There is no perversity in the judgment and decree passed by the learned Appellate Court. Hence, he prayed that the present appeal be dismissed.

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I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. Substantial Questions of Law Nos. 1 to 3:

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All substantial questions of law are intricately connected and are being taken up together for consideration.

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A copy of the compromise dated 29.06.1978 (Ext.DW2/A) mentions that Bhawani Dutt and Kameshwar divided the joint property, and the old house fell into the share of Bhawani

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Dutt, whereas the new house fell into the share of Kameshwar. One room located in the new house was allotted to Bahwani Dutt. The land located adjacent to the house towards the shop of Tek Chand was allotted to Bhawani Dutt, and the rest of the land was allotted to Kameshwar. All the parties agreed to abide by the compromise and get the mutation attested.

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A perusal of the document shows that it declared the intention of the parties to separate their share by means of the document and does not record a past partition that had taken place between the parties. It extinguished the existing rights and conferred new rights upon the parties. Therefore, it was required to be registered. It was laid down by the Hon’ble Supreme Court in Roshan Singh v. Zile Singh, (2018) 14 SCC 814, that when the instrument of partition is intended to operate a declared volition constituting or severing ownership and changing legal position, it is compulsorily required to be registered, in the absence of which it cannot be looked into. It was observed: -

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“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 onwership 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

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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 the 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. Secondary 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: see Mulla's Registration Act , 8th Edn., pp. 54-57. ”

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In the present case, the document was required to be compulsorily registered, and it cannot be looked into in the absence of the registration. Thus, the learned Trial Court erred in considering the document.

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Surinder Singh (DW7) stated in his cross-examination that the plaintiff, Prakash Chand, was in possession of land

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measuring 0-5-7 bighas, whereas defendant Prem Kumar, etc., were in possession of 0-12-12 bighas of the land. He also stated that a house was constructed in Khasra No. 104, which was in possession of both parties.

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His testimony clearly shows that the land was not allotted equally to both parties. A major share is in possession of defendant No.1, whereas the plaintiff has a minor share.

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Prem Kumar (DW1) stated in his cross-examination that Bhawani Dutt was allotted an old house and his father was allotted a new house. He could not say anything about the land allotted to each of the parties. He could not describe the front portion in the occupation of each of the parties. He admitted that Damodar had left an equal share to his father and uncle, but he was not ready to divide the land equally or divide the front equally. These admissions show that parties have not acted upon the compromise, as neither party has an equal share, even though an equal share was left to their predecessors. The defendant No.1 was also not ready to divide the land equally, including the front portion. Therefore, there is a force in the submission of the

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learned Senior Counsel for the plaintiff that the partition was not acted upon and that Defendant No. 1 was acting inequitably.

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Prem Kumar (DW1) stated in his cross-examination that both parties had filed the application for partition before the revenue authorities. Prem Kumar (DW1) stated in his crossexamination that the matter was pending in an appeal before the District Collector. His statement clearly shows that the partition has not attained finality, and the learned Appellate Court was justified in holding that the land was joint and no party could have usurped the best portion of it.

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Plaintiff Prakash Chand (PW1) admitted in his crossexamination that his father Kameshwar had partitioned the land in the year 1978. He also admitted that a compromise (Ext.DA) was effected between the parties. It was submitted that since the partition and the agreement are not in dispute, the learned Appellate Court erred in holding that the partition had not taken place between the parties and that the land was joint between the parties. This submission cannot be accepted. It has been found above that the partition deed relied upon by the defendant is inadmissible in evidence, being unregistered and that it was not

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acted upon. Therefore, no advantage can be derived from the admission made by the defendant.

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The judgment in Ganga Bai (supra) deals with the situation in which a suit for injunction can be filed, and is not relevant for the adjudication of the controversy between the parties.

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No other point was urged.

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Therefore, there is no perversity in the judgment and decree passed by the learned Appellate Court. The learned Appellate Court has not misinterpreted the evidence and has taken a reasonable view that could have been taken based upon the material placed before the learned Appellate Court.

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