Appeal against dismissal of suit for partition of a Guwadi (immovable property). High Court affirmed trial court findings that father's properties had been orally divided between brothers long ago, plaintiff failed to prove joint ownership or construction, and settlement deed and registered agreement supported defendant's exclusive title. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Civil First Appeal No. 138/1992
Deena S/o Shri Vazeer Khan (died) through Legal Representatives
1/1. Hussain Khan S/o late Deena R/o near Truck Union Gangapur City, District Sawai Madhopur.
1/2. Bahu Khan S/o late Deena R/o Rajeev Colony, Gangapur City, District Sawai Madhopur.
1/3. Kamal Khan S/o late Deena R/o near Sahin School, Dussehra Maidan, Gangapur City, District Sawai Madhopur.
1/4. Pappu @ Jamil S/o late Deena R/o Rajiv Colony, Gangapur City, District Sawai Madhopur.
1/5. Smt. Rakkhi D/o S/o late Deena W/o Jahura R/o near Locu Work Shop, Rang Talab, Kota.
1/6. Smt. Jamila D/o S/o late Deena W/o Nawab R/o Dusshera Maidan, Gangapur City, District Sawai Madhopur.
1/7. Smt. Rahisa D/o S/o late Deena W/o Salim R/o Teli Samaj, near Panchayat Bhawar, Dussehra Maidan, Gangapur City, District Sawai Madhopur.
----Appellants-Plaintiffs
Versus
Alla Noor S/o Shri Vazeer Khan, R/o Gangapur City, near Truck Union, District Sawai Madhopur.
----Respondent-Defendant
| For Appellant(s) | : Mr. N.K. Maloo, Sr. Advocate with |
|---|---|
| Mr. V.K. Tamoliya & | |
| Mr. Pratyush Sharma | |
| For Respondent(s) | : Mr. J.P. Goyal, Sr. Advocate with Ms. Jyoti Swami |
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
JUDGMENT RESERVED ON : 20/04/2023 JUDGMENT PRONOUNCED ON : May 15th 2023 BY THE COURT:
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property, a Guwadi, situated in town Gangapur City, District Swai Madhopur.
2.1 It was, inter alia, pleaded in the plaint that parties are Muslim and both plaintiff and defendant are real brothers.
2.2 It was pleaded that the immovable property, a Guwadi, described in para 1 of the plaint was purchased by father Shri Vazeer Khan from one Hazari S/o Chand Khan, Musalman through registered sale deed dated 31.01.1955 and later on in the year 1968, pakka construction of shops and rooms were raised in the northern portion of Guwadi out of funds incurred by father, while the southern portion of Guwadi remained as kham patol. Later on, pakka construction was raised out of joint funds of plaintiff and defendant in the southern portion, as also on the upper floor, two rooms, one hall and one verandha were got constructed after death of father.
2.3 The suit property in question along with construction as existed at the time of filing of the suit, is shown by red color, marked ABCD at ground floor, EFGHIJK at first floor in the map (Ex-1) appended with the plaint.
2.4 It was pleaded that even after death of father, the suit property remained in joint ownership and possession of plaintiff and defendant but when plaintiff asked for partition of the suit property, defendant declined on 18.11.1982, hence, on accrual of cause of action, the present suit was filed on 20.11.1982.
2.5 It was also pleaded by plaintiff that one another house of father at village Sapotara was situated, which was sold by father to one Ramji Lal against sale consideration of Rs.8000/- in
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the year 1968 and out of that fund as also of his own funds, father raised construction of shops and rooms in the suit property in the year 1968. Plaintiff has also pleaded in para No.7 of the plaint that 12 tola gold and Rs.3000/- of father, remained in possession of defendant. However, decree for partition prayed for in respect of immovable property shown by red color in the map appended with the plaint.
3.1 Respondent-Defendant, in his written statement has admitted that the suit property was purchased in the name of Vazeer Khan, father of plaintiff and defendant but has pleaded that apart from the suit property situated in Gangapur City, another house and bada as also agricultural land of father were situated in village Sapotara.
3.2 It was pleaded that in the lifetime of father, properties were divided orally with the consent of both parties in the year 1960 and the suit property, situated in Gangapur city came in share of the defendant and other immovable properties including house, bada and agricultural land situated in Sapotara came in share of the plaintiff. Thereafter, both parties have been in possession of their respective properties as owners.
3.3 It was pleaded that defendant became absolute owner and in possession of the Guwadi in question, and in the year 1962 defendant obtained permission in his own name from Nagar Palika, Gangapur City for construction in Guwadi, and got constructed shops and rooms thereupon by incurring his own fund. The plaintiff has not nexus or concerned with the construction over the Guwadi in question.
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3.4 Later on, when plaintiff sought to sale the house at Sapotara, defendant and father apprehend that after sale of house plaintiff may laid claim right on the house at Gangapur City, therefore, on 29.10.1968 settlement deed (Ex-A1) was got executed by parties in favour of each other. The settlement deed was written on stamp paper through scriber Ram Dayal and duly signed by plaintiff, accepting the property of Gangapur City to be given to defendant. Thereafter, plaintiff sold house situated at Sapotara to one Ramji Lal against sale consideration of Rs.8000/and sale deed dated 26.11.1968 was executed under signatures of father since the property was purchased in his name but entire sale consideration was actually received by the plaintiff only. Thereafter, plaintiff purchased his own separate house, in Gangapur city and started to live therein. Agricultural lands, situated in village Sapotara which also came in the share of plaintiff are continuing in actual possession and cultivation of plaintiff as sole owner.
3.5 It was also pleaded by defendant that in respect of suit property, father had executed a registered agreement of his consent dated 21.06.1969 (Ex-A20), in favour of defendant stating, inter alia, that the property of Gangapur City exclusively belongs to defendant, who has raised construction thereupon and defendant is absolute owner and in possession of the property at Gangapur City.
3.6 It was pleaded by defendant that entire construction of shops and rooms in the suit property was raised by defendant out of his own funds that too after seeking approval/sanction from the
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Nagar Parishad Mandal Gangapur City, and whole property is in exclusive possession and ownership of defendant and suit property is not joint property and plaintiff has no right, title and interest therein, hence, plaintiff is not entitled to seek partition of the suit property.
4.1 It is worthwhile to take note that despite of clear pleadings of defendant that property at Gangapur City had came to his share in the oral partition in 1960; thereafter, plaintiff too has accepted the suit property to be of defendant, in the settlement deed dated 29.10.1968 duly signed by plaintiff and further father made declaration of absolute ownership and exclusive possession of defendant over the property at Gangapur City by way of execution of registered agreement dated 21.06.1969, the plaintiff neither filed any rejoinder to the written statement nor has denied/disputed the execution of settlement deed dated 29.10.1968, nor has disputed the existence/execution of registered agreement dated 21.06.1969, executed by father in favour of defendant.
4.2 It is also worthy to take note that plaintiff has not pleaded about status of agricultural land of 5 Bigha, situated in village Sapotara, which was alleged by defendant to come in share of the plaintiff and in possession of the plaintiff.
5.1 According to rival pleadings of plaint and written statement, the learned trial Court framed as many as eight issues, including the issue of relief which are incorporated in the judgment impugned.
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5.2 As per pleadings of plaint, issue No.1 was framed in respect of raising construction in northern portion of the suit property out of the fund of Father, including fund of Rs.8000/received from Ramji Lal against sale of the house at Sapotara in 1968 and issue No.3 was framed in respect of raising construction in Southern portion and in the upper floor of Guwadi, out of joint funds by plaintiff and defendant.
5.3 Issue No.2 came to be framed in respect of whether the suit property has been remained and is in continuous joint ownership and possession of plaintiff and defendant?
5.4 Issue No.4 pertains to the right of plaintiff to seek partition of the suit property.
5.5 Issue No.5 was framed on the basis of defence pleaded by defendant, in respect of plea that properties of father have been divided orally in the year 1960 wherein House, Bada and agricultural land of 5 Bigha, situated at village Sapotara came in the share of plaintiff and Guwadi, situated in Gangapur city came in the share of defendant and since thereafter, whole construction in Guwadi i.e. suit property was raised by defendant and defendant is the sole owner of suit property.
5.6 Issue No.6 was framed in respect of execution of settlement deed dated 29.10.1968.
5.7 Issue No.7 in respect of execution and registration of agreement dated 21.06.1969 by father in favour of defendant, declaring that the house of Gangapur city absolutely of defendant Alla Noor and construction in the property got raised by defendant alone.
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6.1 In support of respective issues, the plaintiff examined PW1–Ummaidi, PW2–Kannu, PW3–Chandu, PW4–Jumma and himself as PW5 and exhibited 3 documents. Exhibit 1–site map with showing construction over the suit property. Exhibit 2–sale deed dated 31.01.1955 of the Guwadi in question i.e. the suit property, purchased in the name of father Vazeer Khan and Exhibit 3–copy of revenue suit filed by defendant for partition of agricultural land at Sapotara.
6.2 In rebuttal evidence, defendant examined himself as DW1, DW2– Hazari, DW3– Lallu, Narayan, DW4– Ram Dayal, scriber of settlement dated 29.10.1968, DW5–Rameshwar Prasad, Sharma, DW6–Saeed, DW7–Raghunandan Lal Sharma, DW8–Gopi and DW9–Gopichand. The defendant also produced and exhibited documents from Exhibit A1 to A25, including the settlement deed dated 29.10.1968 (Exhibit-A1), registered agreement in the form of declaration executed by father dated 21.6.1969 (Exhibit-A20), house tax receipts in the name of defendant, rent deeds in favour of defendant and sanction for construction, approval of map and Patta issued by Nagar Palika, Gangapur city in favour of defendant in respect of the suit property.
7.1 Learned Additional District Judge, Gangapur city after due appreciation of oral and documentary evidence available on record, in context to pleadings of both parties, decided every issue independently.
7.2 While deciding issues No.1 and 3, it has been observed that plaintiff miserably failed to prove that the construction over
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the suit property, either on northern portion or Southern portion was raised by funds of father, particularly out of fund of Rs.8000/received against the sale of house at Sapotara or our of joint funds of plaintiff and defendant. As per admission of plaintiff (PW5), the trial Court has recorded a fact finding that plaintiff has not incurred a single penny in construction over the suit property, accordingly issues No.1 and 3 have been decided against plaintiff.
7.3 While deciding issue No.2 and 4, the trial Court has come to the conclusion that suit property is not joint property of plaintiff and defendant, rather is absolute property of defendant and further, plaintiff has never been in actual and physical possession over any part of the suit property, rather defendant has been in continuous and exclusive physical possession of the suit property.
7.4 While deciding issue No.5, the trial Court has observed that the settlement deed (Exhibit A1), though unregistered but same is a family settlement between parties, which is not required to be registered and in this issue, the trial Court recorded findings that properties of father have already been divided between the plaintiff and defendant, in the manner that the immovable property of father situated at village Sapotara, comprising house, Bada and agricultural land of 5 Bigha came in the share of plaintiff, whereas the Guwadi situated at Gangapur City i.e. the suit property, came in the share of defendant.
7.5 Issues No.6 and 7 have been decided conjointly and since the execution by the settlement deed (Exhibit A1) and the execution of agreement (Exhibit A20) are not in dispute and in
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addition execution of both documents have been proved also, it has been observed by the trial Court that the defendant is absolute owner of the suit property and whole construction in the Guwadi was raised by the defendant after obtaining sanction and approval of map from the Nagar Palika, Gangapur city.
7.6 In view of such findings as also after considering the legal proposition, the trial Court has concluded that plaintiff does not have any right to seek partition of the suit property and finally, the plaintiff’s suit for partition has been dismissed on merits, vide judgement dated 02.06.1992. Hence, the plaintiff feeling aggrieved by dismissal of his suit for partition on merits, has preferred the present first appeal, assailing the judgment and decree dated 02.06.1992.
From the record, it has also revealed that prior to the death of appellant-plaintiff, the matter was sent for mediation twice and again after substitution of legal representatives of appellant, the matter was sent for mediation third time, but mediation proceedings remained unsuccessful.
10.1 Learned Senior Counsel, appearing on behalf of appellants would submit that the plea of defendant of oral
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partition has not been proved, the document of settlement deed dated 29.10.1968 produced and exhibited by the defendant as Exhibit A1 does not corroborate the plea of oral partition in the year 1960 and further the settlement deed, being unregistered document cannot be relied upon and is not admissible evidence to prove the factum of partition of properties of father between parties.
10.2 It has been argued that learned trial Court has committed grave error of fact and law in treating the settlement deed (Exhibit A1) as a family settlement, in respect of the joint properties of the family, whereas under the Mohammedan law, there is no concept of joint family nor partition by way of family settlement is permissible in law. Therefore, findings of the trial Court, more particularly in respect of issue No.5 are illegal and perverse.
10.3 He submits that even the settlement deed dated 29.10.1968 was not acted upon and thereafter, father sold the house at Sapotara vide sale deed dated 26.11.1968.
10.4 Learned Senior Counsel in his full vehemence argued that document Exhibit A20 dated 21.06.1969, though executed by Father in favour of defendant and is a registered instrument, however, this registered document travels contrary to the defence of defendant himself. He submitted that if the property at Gangapur city had already been come to his share in the partition as pleaded by the defendant, there was no necessity of execution of document Exhibit A20 by father, and in this way, the document
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Exhibit A20 has no credential value and cannot be read in favour of defendant.
10.5 He submits that the plea of oral partition of the property of father, taken by defendant stands falsify by the fact that defendant himself filed a revenue suit for claiming half share in the agricultural land, against the plaintiff, which is Ex-3, just prior to filing of the present civil suit by plaintiff.
10.6 Learned Senior Counsel, although has admitted that plaintiff or his legal representatives are not in actual and physical possession over the suit property, however submits that since the suit property was purchased by father of plaintiff Shri Vazeer Khan through registered sale deed dated 31.01.1955, Exhibit-2, and after his death, the suit property remained joint property between plaintiff and defendant, therefore, same is liable to be partitioned equally between the plaintiff and defendant.
10.7 He prayed that the impugned judgment and decree be quashed and plaintiff’s suit for partition be decreed as prayed for.
10.8 Learned Senior Counsel has relied upon and referred case law which shall be discussed in the later part of the judgment at appropriate place.
11.1 Per contra learned Senior Counsel, appearing on behalf of respondent-defendant, while supporting the impugned judgment, canvassed that, admittedly, the suit property was purchased through registered sale deed dated 31.01.1955 from one Hazari son of Chand Khan in the name of father of plaintiff and defendant namely Vazeer Khan but father gave this property
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to defendant orally in the year 1960 and gave his other properties of house, Bada and agricultural land at Sapotara to plaintiff.
11.2 Thereafter, in 1992 defendant, sought permission to raise construction from Nagar Palika, Gangapur city, and raised construction of shops and rooms out of his own fund.
11.3 He argued that plaintiff and his witnesses do admit that plaintiff never lived in the suit property nor raised any construction thereupon.
11.4 He submits that the theory of plaintiff that father incurred amount to raise construction is not established by any evidence. Defendant has produced oral and documentary evidence, Exhibit A21 to A25 to prove that the construction was raised by defendant after seeking approval of map from Nagar Palika, Gangapur city in the year 1962.
11.5 He submits that the settlement deed dated 29.10.1968, Exhibit A1 executed by Father and duly signed by plaintiff is an admitted document, though same is not a family settlement and the trial Court wrongly treated this document as family settlement but this settlement deed is otherwise admissible in evidence.
11.6 He submits that the document is just a declaration by father, hence, does not require registration as a partition deed and alternatively this document is definitely admissible to be considered for collateral purposes. Plaintiff is also signatory to the document, hence, is estopped to challenge the same and bound by his acceptance that the property at Gangapur city is exclusive properties of defendant alone.
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11.7 In addition, he submits that by execution of a registered instrument of agreement dated 21.06.1969, it has also been declared by father that defendant is absolute owner and in exclusive possession of the suit property.
11.8 His argument is that the defendant had acquired absolute ownership and possession of the suit property even during the lifetime of father and after death of father, the suit property never remained joint and common between plaintiff and defendant, therefore, plaintiff has no right to claim partition of the suit property.
11.9 Learned counsel for defendant has argued that plaintiff PW5 admits to raise construction of house over the Bada at Sapotara as also admits to have exclusive possession of the agricultural land situated at Sapotara, therefore, plaintiff cannot belied to get these properties situated at Sapotara from father in oral partition.
11.10 He argued that in fact, the house at Sapotara was sold by plaintiff Ramji Lal and sale consideration of Rs.8000/- was received by him only, but because the property was in the name of father, therefore, sale deed dated 26.11.1968 was executed by Father.
11.11 He also submits that mere filing of a revenue suit by the defendant which was never pursued on merits and came to be dismissed in default does not give rise to any cause of action or any right to the plaintiff to claim partition of the suit property.
11.12 He argued that the trial Court has rightly appreciated, document and evidence of both parties and after overall
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appreciation of evidence of both parties has rightly observed that the evidence adduced by defendant is trustworthy and reliable. It is no more res integra that the civil disputes are decided, following the principle of preponderance of probability.
11.13 He submits that admittedly, plaintiff has neither incurred a single penny in the construction raised on the suit property, nor ever remained in possession over the suit property, and when it is proved that father had already given the suit property to the defendant alone, therefore, in view of oral and documentary evidence of defendant and plaintiff, the trial court has not committed any error of fact and law in dismissing the plaintiff’s suit for partition. Hence, the judgment and decree dated 02.06.1992, deserves to be affirmed, and appeal filed by plaintiff be dismissed.
12.1 Having heard rival contentions of counsel for both parties and after going through the pleadings of parties, oral and documentary evidence produced by parties on record, it has culled out that fundamentally, the claim of partition of suit property by plaintiff is based on the ground that the suit property, a Guwadi, was purchased by father of parties, namely Shri Vazeer Khan through registered sale deed dated 31.01.1955 and further construction over Guwadi, comprising rooms and shops was also raised out of funds incurred by father during his lifetime and after death of father, out of joint funds of plaintiff and defendant. But it is worthy to notice that plaintiff in pleadings of plaint nowhere disclosed about other immovable properties of father situated at village Sapotara, though only a reference of sale of house situated
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at Sapotara, by father to one Shri Ramji Lal was given in order to plead that this sale amount of Rs.8000/- was incurred by father in raising construction over the Guwadi in question.
12.2 In contrast to pleadings of plaint, plaintiff admits in his evidence that apart from Guwadi i.e. the suit property at Gangapur City, father owns other immovable properties of house, bada and 5 bigha agricultural land at village Sapotara. As far as house at Sapotara is concerned, same has admittedly been sold out through registered sale deed dated 26.11.1968 to one Shri Ramji Lal against sale consideration of Rs.8000/-, but bada and agricultural land situated at Sapotara have been admitted by plaintiff to be in his exclusive possession.
12.3 Plaintiff admits in his evidence about raising construction of house over the bada and his absolute possession thereof as also admits his cultivation and physical possession over the agricultural land at Sapotara. Similarly, plaintiff has not disputed that the Guwadi in question i.e. the suit property is in exclusive possession of the defendant.
12.4 It is not in dispute that such position about the physical possession of plaintiff and defendant over the respective properties of father is continuing since prior to filing of the present suit for partition, however, it is a matter of surprise that plaintiff has not whispered a word in the plaint about other properties i.e. bada and agricultural land of father situated at Sapotara which were admittedly in his exclusive possession. Apparently, it may be inferred that plaintiff has deliberately concealed such material facts in the plaint.
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12.5 Further it is also worthy to note that in pleadings of plaint, plaintiff has not whispered a word about oral partition of properties of father, during lifetime of father nor disputed or denied the execution of settlement deed dated 29.10.1968, executed by father and duly accepted/signed by plaintiff nor denied the execution of registered agreement dated 21.06.1969, executed by father exclusively in favour of defendant.
12.6 Therefore, it is clear from record that plaintiff did not file the present suit for partition with disclosure of complete and correct material facts and has not approached before the Civil Court with clean hands.
(i) Immovable properties of father were divided with the consent of parties orally between plaintiff and defendant, in the year 1960 itself. In such division the properties comprising house, bada and 5 bigha agricultural land situated at village Sapotara came in the share of plaintiff and the Guwadi in question i.e. the suit property situated at Gangapur City, came in the share of defendant and since then defendant has been in continuous and exclusive possession over the suit property as owner and entire construction over the Guwadi in question was raised by defendant alone, after obtaining sanction for construction from Nagar Palika Mandal in the year 1962 and thus, the suit property is of absolute ownership and possession of defendant.
(ii) A settlement deed dated 29.10.1968 was executed between parties in favour of each other
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wherein plaintiff admitted the Guwadi in question at Gangapur City to be the property of defendant and this settlement deed is duly signed by the plaintiff, thus, plaintiff is estopped by his conduct, to claim partition of the Guwadi i.e. the suit property.
(iii) Father Vazeer Khan by way of executing an agreement dated 21.06.1969 in favour of defendant, has accepted and declared that the Guwadi in question i.e. the suit property is of absolute ownership of defendant and construction over the Guwadi was raised by defendant alone by incurring his own funds. Father after execution of this agreement got the same registered before the SubRegistrar Office, Tehsil Gangapur City. (iv) In addition to aforesaid pleas, defendant has categorically denied that father did incur any fund in raising construction over the Guwadi in question and it has also been denied that any joint fund of plaintiff and defendant was incurred in raising the construction over the southern portion and to raise the construction over first floor of Guwadi in question. It has been pleaded by defendant specifically that entire construction was raised by defendant alone out of his own funds.
14.1 Learned trial Court has accepted the plea of oral partition of properties of father as stated by the defendant. Learned trial Court treated the settlement deed dated 29.10.1968 (Ex-A1) as family settlement between the parties and further by placing reliance upon the registered agreement dated 21.06.1969 (Ex-A20), has concluded that both parties are having absolute possession over the respective properties came to their share in oral partition and thus, plaintiff does not have any right to seek partition of the suit property. The suit property has been observed to be property of defendant.
14.2 In the present first appeal, it has to be seen by this Court as to whether findings and conclusion of the trial Court in the impugned judgment dated 02.06.1992, warrants any
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interference and is in consonance with the material on record and legal proposition or not?
15.1 In respect of case of plaintiff as pleaded in the plaint to the effect that in the northern portion of Guwadi in question, the construction was raised out of funds incurred by father and in the southern portion as also over first floor of Guwadi in question, the construction was raised after death of father, out of joint funds of plaintiff and defendant, issues No.1 and 3 were framed by the trial Court. The burden of proof for both the issues is upon plaintiff.
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from the Nagar Palika, Gangapur City to raise construction and thereafter the construction was raised by defendant out of his own funds, then in 1966, patta of Guwadi was also issued in his name by the Nagar Palika. The document Ex-A21 to A25 have been produced on record by defendant to substantiate such facts. Learned trial Court after appreciation of respective oral and documentary evidence of both the parties and taking into consideration, the registered agreement dated 20.06.1969 (ExA20) executed by father, wherein the father has accepted in clear words that he did not incur any amount in raising construction over the northern portion of the Guwadi in question and the construction over the Guwadi in question was raised by defendant out of his own funds, has decided the issue No.1 against the plaintiff.
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have been found to be passed in consonance with evidence available on record, therefore, findings of the trial Court in respect of issues No.1 and 3 do not call for any interference by this Court and are hereby affirmed.
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possession of agricultural land at Sapotara. He states to give half share of proceeds to defendant. Plaintiff admits in crossexamination that in bada at Sapotara, he has constructed house and this bada is also absolute property of plaintiff. For the house at Sapotara, plaintiff stated that this house was sold by father to one Ramji Lal against sale consideration of Rs.8000/-, which was incurred by father in raising construction over the Guwadi in question. Thus, although, plaintiff has not admitted the oral partition of properties of father between plaintiff and defendant in the year 1960, but plaintiff has nowhere explained and clarified as to how and since when he came in exclusive possession of bada, whereupon he constructed his own house and he came in exclusive cultivation and possession of the agricultural land situated at Sapotara. Plaintiff admits that he is not having any possession over the Guwadi in question. The evidence of plaintiff about leaving possession over the Guwadi in question, is not believable and has not been accepted by the trial Court as well. Thus, this Court finds that plaintiff could not explain as to how the entire Guwadi in question came in exclusive possession of defendant, if the same was not given to defendant in the oral partition in the year 1960. Therefore, from the evidence and over all circumstances about possession of parties over their respective properties, oral division seems to be happened between parties. The trial Court placed reliance on judgment of Allahabad High Court in case of Ram Gopal Vs. Maya Devi [AIR 1978 All. 119] . In that judgment, the Court observed it is obvious that when branches have been separated over long period, it is not
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always possible to have a direct evidence of actual date of partition.
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accept the plea of partition of defendant treating the document Ex-A1 as a family settlement is against the Mohammedan Law. In support of his arguments, reliance has placed on the judgment passed in Abdul Raheem Vs. Land Acquisition Officer-CumRevenue Divisional Officer, Mahaboobnagar [AIR 1989 Andhra Pradesh 318], Abdul Rashid Vs. Sirajuddin [AIR 1993 Allahabad 206], Mohd. Nadeem Vs. Mohd. Rafi [2020 SCC OnLine Del 1818] and judgment passed by the Rajasthan High Court at Principal Seat, Jodhpur in Chhote Khan Vs. Barkar: SB Civil Revision Petition No.693/1994 decided on 07.09.1998.
Further he submits that after execution of registered instrument dated 21.06.1969 (Ex-A20) by father in favour of defendant, absolute ownership and exclusive possession of defendant over the Guwadi in question i.e. the suit property cannot be disputed by plaintiff and no right to claim partition of the suit property survives to the plaintiff.
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upon this settlement deed at place A to B and has not challenged or disputed the execution of this deed. Obviously when this deed has not been treated as a partition deed, same cannot be read as an evidence to prove the factum of partition of property of father between plaintiff and defendant but this undisputed deed, obviously can be used and read against the plaintiff to hold that plaintiff being one of signatory to this settlement deed, is estopped to dispute contents of the deed as also gives his consent about the fact that father made a declaration in favour of defendant Alla Noor that Alla Noor is owner and full authority over the property of Guwadi in question situated at Gangapur City. However, it is made clear that this Court does not mean that by virtue of this settlement deed (Ex-A1), ownership rights of father in Guwadi in question were extinguished and defendant acquired ownership rights over Guwadi in question i.e the suit property. But for reasons as above, the objection of counsel for appellants that settlement deed (Ex-A1) is inadmissible in evidence for want of registration stands turned down. According to contents and recital of the deed, same can be read against the plaintiff in the manner as observed hereinabove. However, it is hereby observed that in case this document suffers from any deficiency of stamp duty, it is incumbent upon defendant to pay the balance stamp duty and penalty as determined by the Sub-Registrar. Thus, it is directed that the trial Court shall impound this document and send the same to the concerned Sub-Registrar for determination of stamp duty and if any balance stamp duty and penalty, is found payable, same shall be recovered from the defendant. Counsel for
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respondent-defendant, during course of arguments has given undertaking to pay the balance stamp duty and penalty, if any payable on this settlement deed. Thus, in view of above the settlement deed dated 29.10.1968 (Ex-A1) is declared to be admissible in evidence.
(i) Rana Vidya Bhushan Singh V Ratiram [(1969) 1 UJ
86 (SC)], wherein the following has been laid down:
“A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his Indian Registration Act, 7th Edn. At p. 19:
"The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it.’ "
The ratio of this judgment has been followed by the Apex Court in case of K.B. Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd. [(2008) 8 SCC 564] .
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(ii) Yellapu Uma Maheshwari Vs. Buddha
Jagadheeswararao [(2015) 16 SCC 787] , the Apex Court has
held as under:
“15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registerable document and if the same is not registered, it becomes an inadmissible document as envisaged under section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of Section 17 (i) (b) of the Registration Act and hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exhibits B 21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition. 16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari Vankat Reddy , AIR 1969 A.P. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance.”
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26.1 As far as the oral partition of properties of father between plaintiff and defendant is concerned, the issue has been decided by the trial Court applying the principle of preponderance of probabilities with observations that evidence adduced by the defendant seems to be more trustworthy than the evidence of plaintiff.
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26.2 The trial Court appreciated the evidence of both parties in detail while deciding issue No.5 and on the basis of respective evidence of parties where it has been admitted that properties of father situated at Sapotara are in actual and physical possession of plaintiff and the Guwadi in question i.e. the suit property of father is in actual and physical possession of defendant, and such factual scenario stands corroborated by execution of two undisputed documents of settlement deed Ex-A1 and registered agreement dated 21.06.1969 (Ex-A20), the trial Court has concluded that partition between parties had taken place.
26.3 Counsel for appellants argued that even after execution of settlement deed dated 29.10.1968 (Ex-A1), father executed the sale deed dated 26.11.1968, to sale the house situated at village Sapotara to one Ramji Lal and defendant himself filed suit for partition of agricultural land situated at village Sapotara, on 29.09.1982, before the present suit was filed by plaintiff on 20.11.1982, therefore, it may not be assumed that properties of father had been partitioned and the settlement deed was acted upon.
26.4 In respect of sale of house at Sapotara to Ramji Lal is concerned, it has been clarified by defendant that in fact house was sold by plaintiff Deena and sale consideration of Rs.8000/was also received by Deena, only the sale deed was signed by father Vazeer Khan because the house was in the name of father Vazeer Khan in documents.
26.5 In addition, this Court has noticed that plaintiff has not come out in the present suit that properties of father situated at
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Sapotara are joint between parties, rather at one hand, plaintiff in his evidence admits his possession over the bada and agricultural land situated at Sapotara, on the other hand, not whispered a word about such properties of father in his possession, in pleadings of plaint. The contention of plaintiff that the amount of sale consideration of Rs.8000/-, was received by father and was incurred in raising construction over the northern portion of Guwadi in question has already been discussed and found disproved while deciding issue No.1 against plaintiff. Thus, the pretext of execution of sale deed dated 26.11.1968 of the house at Sapotara under signatures of father does not help plaintiff’s case to belie the factum of partition already taken place.
26.6 In respect of filing revenue suit by the defendant to claim partition of the agricultural land situated at Sapotara is concerned, it has been pointed out that this revenue suit was never pursued on merits and came to be dismissed in default. The trial Court too has considered the evidential value of filing of revenue suit by the defendant and observed that where plaintiff is going against his admitted document of settlement deed (Ex-A1), the filing of revenue suit by defendant (Ex-3) goes against defendant but on a comparative analysis of respective evidence of both parties in totality, the evidence of defendant is more reliable and trustworthy.
26.7 This Court also finds that plaintiff cannot be allowed to take benefit of filing of revenue suit for partition by defendant, for the reason that plaintiff has not come out with a case in the present suit that properties of father situated at Sapotara and
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Gangapur City, are joint and undivided between parties. It has already been discussed that plaintiff did not whispered a word about properties of father situated at Sapotara, in the plaint. In contrast to pleadings of plaint, plaintiff has admitted that the agricultural land situated at Sapotara is in exclusive possession and cultivation of plaintiff. There is no evidence on record that plaintiff ever transferred half share of proceeds from the agricultural land to defendant. Similarly the bada of father situated at Sapotara is also in possession of plaintiff, where he admits to raise construction of double story house. Thus, filing of the revenue suit for partition by defendant does not improve the case of plaintiff to claim partition of the Guwadi in question i.e. the suit property of defendant.
26.8 It may be observed that the position of parties in respect of having possession over properties of father as discussed by the trial Court while deciding the issue No.5 has not been disputed. As far as expenditure incurred in raising the construction over the Guwadi in question is concerned, the issue has already been concluded against the plaintiff while deciding issues No.1 &3.
26.9 This Court does not find any arbitrariness, illegality or infirmity in such findings of the trial Court, therefore, findings of issue No.5, except findings in respect of treating the settlement deed Ex-A1 as family settlement, are hereby affirmed but the findings in respect of Ex-A1 treating same as family settlement are declared as erroneous and illegal.
26.10 It is hereby held that document of settlement deed ExA1 is admissible in evidence, as has been discussed by this Court
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hereinabove. However, the trial Court shall impound the settlement deed Ex-A1 and send this document to the concerned Sub-Registrar for assessment of the stamp duty and if any deficit stamp duty and penalty is found payable, same shall be levied/realized from the defendant.
27.1 In respect of execution of registered agreement dated 21.06.1969 (Ex-A20) by father Vazeer Khan in favour of defendant Alla Noor is concerned, the trial Court has framed issue No.7 and has decided the issue in favour of defendant.
27.2 Learned Senior Counsel for appellants has argued that contents of document Ex-A20 are absolutely contrary to averments made by defendant in para No.1 and 3 of his written statement and further if the Guwadi in question i.e. the suit property was already given to defendant by way of settlement deed (Ex-A1), there was no necessity to execute the agreement (Ex-A20), therefore, this document Ex-A20 cannot be relied upon in favour of defendant.
27.3 This Court finds that as far as execution of agreement dated 21.06.1969 by father Vazeer Khan is concerned, same has not been disputed by plaintiff and otherwise also, this agreement is a registered document and both witnesses of this agreement namely Hazari and Lallu Lal have appeared in witness box as DW2 and DW3 to prove the execution of agreement. The objection in respect of admissibility of this agreement for want of registration was withdrawn by counsel for plaintiff before the trial Court itself, since the agreement is a registered document.
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27.4 A perusal of document Ex-A20 indicates that this document was executed by father Vazeer Khan to make it clear that son Deena is annoyed with him and his another son Alla Noor, therefore, there would not be any dispute between parties claiming right in the house property situated at Gangapur City, hence, by way of this document father Vazeer Khan has declared that the defendant Alla Noor is the owner of house at Gangapur City. It has also been declared that plaintiff Deena would not have any right in this property.
27.5 After perusal of agreement (Ex-A20) and in view of findings that settlement deed Ex-A1 is not a partition deed, the registered agreement Ex-A20 may not be treated as contradictory to the settlement deed Ex-A1.
27.6 The trial Court has read this document in context to the plea of oral partition as also admission of father for not incurring any expenditure in raising construction over the Guwadi in question. This registered document declaring the ownership of defendant over the Guwadi in question i.e. the suit property otherwise confers the absolute title of defendant over the Guwadi in question, during the lifetime of father. Thus, the document ExA20 is not contrary to the evidence of defendant and its credential value stands in favour of defendant. The document supports the case of defendant that he had acquired ownership and possession of the Guwadi in question i.e. the suit property during the lifetime of father.
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transpired that the Guwadi in question has been in continuous and exclusive possession of defendant at least after division in 1960. Further by documents Ex-A21 to Ex-A25, it stand proved that defendant sought permission to raise construction over the Guwadi in question in the year 1962 and thereafter obtained patta from the Municipal Board, Gangapur City in the year 1966. The exclusive use of this property also stands fortified by various rend deeds (Ex-A17 to Ex-A19) executed by respective tenants in favour of defendant. House tax of the suit property has been paid by defendant to which receipts have been placed on record as ExA3 to Ex-A16. From the evidence, it has been proved that the entire construction over the Guwadi in question was raised out of expenditure incurred by defendant himself. Plaintiff could not lead any evidence to show his possession at any point of time in the Guwadi in question. It is undisputed fact that plaintiff does not have any physical possession over any portion of Guwadi in question i.e. the suit property. On the contrary, properties of father situated at Sapotara i.e. bada and agricultural land are in exclusive use and possession of plaintiff alone. Learned counsel for respondent-defendant admits that properties at Sapotara are of exclusive ownership and possession of plaintiff wherein defendant has no right, share or interest. Thus, the physical possession of parties over properties as they came in their share in division is not in dispute and it is held that both parties are already in exclusive possession of their respective properties as owner, as such partition suit filed by plaintiff is not liable to succeed.
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as family settlement are hereby declared as erroneous and illegal, but, the document of settlement deed has been held as admissible in evidence. However, the trial Court is directed to impound the document of settlement deed dated 29.10.1968 (Ex-A1) and to send the document to the concerned Sub-Registrar for determination of the stamp duty and if any deficit stamp duty, penalty is found payable, same shall be paid by defendant in view of undertaking furnished by counsel for respondent-defendant before this Court and shall be realized from the defendant.
(SUDESH BANSAL),J
NITIN/
3 issues framed by the court
Whether the trial court erred in dismissing the plaintiff's suit for partition of immovable property, given the defense of oral partition and execution of unregistered settlement deed and registered a
Whether the unregistered settlement deed dated 29.10.1968 can be admitted in evidence for collateral purposes despite lack of registration.
Whether a claim for partition can succeed when the plaintiff failed to prove construction costs and joint possession, and the court found division of father's properties between the sons prior to the
Colour shows how this judgement treated each authority
Ram Gopal Vs. Maya DeviReferred¶165
AIR 1978 All. 119 · Who else cites this
Abdul Raheem Vs. Land Acquisition Officer-Cum-Revenue Divisional Officer, MahaboobnagarReferred¶174
AIR 1989 Andhra Pradesh 318 · Who else cites this
Abdul Rashid Vs. SirajuddinReferred¶174
AIR 1993 Allahabad 206 · Who else cites this
Mohd. Nadeem Vs. Mohd. RafiReferred¶174
2020 SCC OnLine Del 1818 · Who else cites this
Chhote Khan Vs. BarkarReferred¶174
SB Civil Revision Petition No.693/1994 decided on 07.09.1998
Rana Vidya Bhushan Singh V RatiramFollowed¶190
(1969) 1 UJ 86 (SC)
K.B. Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd.Followed¶194
(2008) 8 SCC 564 · Who else cites this
Yellapu Uma Maheshwari Vs. Buddha JagadheeswararaoRelied on¶198
(2015) 16 SCC 787 · Who else cites this
1 provisions across 1 enactments
Deena through Legal Representatives
Hussain Khan
Bahu Khan
Kamal Khan
Pappu @ Jamil
Alla Noor
Sudesh Bansal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
