IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 91/1999 Reserved on: 6.3.2009 Decided on:17.3.2009 Rajinder Dev and others. …Appellants. Versus Narain Singh and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the Appellants : Mr. Ajay Kumar, Advocate. For the Respondents: Mr. N.K. Sood, Advocate for respondent No.1. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 31.10.1998 passed by the Additional District Judge, Shimla in Civil Appeal No. 74-S/13 of 1997. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for declaration to the effect that sale deed No. 120/95 attested on 3.5.1995 by the Sub Registrar, Chirgaon in favour of appellants-defendants No.1 and 2 (hereinafter referred to as ‘defendants No. 1 and 2 for convenience sake) qua the land bearing 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 khasra No. 1155 situate in Chak Masli, Tehsil Chirgaon, District Shimla is the result of fraud and hence null and void as the land in question belongs to the plaintiff being allotted to him in family partition which took place in the year 1985. Further case of the plaintiff is that the sale of the land bearing khasra No. 1669 and 1197 again in favour of defendants No.1 and 2 by appellant-defendant No.3, Fula Singh, (deceased) being for immoral purposes and without the consent of the plaintiff and proforma respondent No.4 was also null and void and not binding upon the plaintiff as this land was ancestral property. The decree for permanent prohibitory injunction restraining the defendants No.1 and 2 from causing any sort of interference in the suit land bearing Khasra Nos. 1155, 1669 and 1197 was also sought. It was the case of the plaintiff that deceased defendant No.3 (Fula Singh) was his father whereas defendant No.2 and 4 are the sisters and brothers respectively. According to him, the family partition took place amongst them. The land bearing khata Khatauni No. 4/9, khasra No. 1155 known as ‘Loshar’ situate in Chak Masli was allotted to him in such family partition. He was in possession thereof. The entire suit land was stated to be ancestral property. The remaining suit land bearing khasra Nos. 1169 and 1197 had also fallen to the share of deceased defendant No.3 which he has taken as ‘Burang’ for his maintenance during his life time. Deceased defendant No.3 without any right, title and interest executed sale deed No. 120/95 fraudulently and registered the same in the office of Sub Registrar, Chirgaon in favour of defendants No.1 and 2 on 3.5.1995 behind the back of the plaintiff. The sale deed was stated to be presented by defendants No.1 and 2 before the revenue authorities for attestation of the mutation of the suit land in their names. Defendants No. 1 to 3 contested the suit. It was stated that the suit land was retained by deceased defendant No.3 for his own maintenance 3 since the plaintiff and proforma respondent No.4 were living separately from defendant No.3 and harassing him unnecessarily. The replication was filed by the plaintiff. The trial court decreed the suit on 11.9.1997. Defendants No.1 to 3 preferred an appeal before the Additional District Judge, Shimla. The learned Additional District Judge Shimla partly accepted the appeal. The sale of the land bearing khasra No. 1155 was held illegal, null and void and not binding upon the plaintiff. Defendants No.1 and 2 were restrained by a decree of permanent prohibitory injunction from causing any sort of interference in the suit land bearing Khasra No. 1155 and from getting the mutation attested in their favour on the basis of sale deed Ex.PA. The claim of the plaintiff that the sale of the suit land bearing Khasra Nos. 1197 and 1169 was also illegal, invalid and null and void was rejected. Accordingly the judgment and decree passed by the trial court was modified and the suit of the plaintiff was partly decreed. This Regular Second Appeal is directed against the judgment and decree passed by the learned Additional District Judge, Shimla whereby he had partly decreed the suit of the plaintiff. The Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether an unregistered and unstamped document purporting to be a deed of partition (Ex.PW-2/A in this case) could be admitted in evidence and relied upon by the courts and whether by mere marking of a document as an Ex. in the case it becomes admissible document? 2. Whether a suit for mere declaration without any consequential relief is competent or maintainable when the plaintiff is not in possession of the suit property? 3. If document Ex.PW-1/A is excluded from the evidence, as according to the appellants it was not admissible in evidence, could the courts pass any decree in favour of the respondents? 4 4. Whether is the effect of the findings of the first Appellate Court if there are glaring discrepancies in the pleadings and evidence of the plaintiff? 5. What is the legal effect on the judgment of the learned Additional District Judge, Shimla if he has failed to formulate proper points for determination? 6. Whether in the facts and circumstances of the case, the judgments and decrees of both the courts below are vitiated for non-consideration of the vital oral and documentary evidence of the appellants. If so what is the effect of such non-consideration on the judgments and decrees of both the courts? Mr. Ajay Kumar, Advocate has strenuously argued that Ex.PW-2/A was required to be stamped and registered. He also contended that the findings of the first appellate court whereby the sale deed qua Khasra No. 1155 has been declared null and void are contrary to evidence brought on record. Mr. N.K. Sood, Advocate has strenuously argued that Ex.PW-2/A was merely a memorandum of partition and thus neither it was required to be stamped nor registered. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. The plaintiff appeared as PW-1. He has also examined PW-2, Roshan Lal, PW-3 Gulab Singh and PW-4 Rajinder Singh. The defendant examined himself as DW-1 and also examined DW-2 Sunak Ram and DW-3 Sohan Lal. The plaintiff has relied upon Ex.PW-2/A vide which the partition took place and Ex.PA the copy of the sale deed. He has also relied upon the copy of jamabandi Ex.PW-1/A for the year 1977-78. 5 PW-1 has deposed that defendant No.2 is his sister, defendant No.4 is his brother and deceased defendant No.3 was his father. According to him deceased defendant No.3 had effected partition in which the defendant’s witness No.2 and DW-3 were also present. As per the partition, he received land named ‘Loshar’, khasra Nos.1155, 1197 and 1669 were kept by deceased defendant No.3 for his own maintenance. His father had no right to sell the land for immoral purposes. PW-2 a Panch had identified his signatures on Ex.PW-2/A and stated that the same was signed by PW-3 another Panch, deceased defendant No.3, Fula Singh, and defendant No.4 Munshi Ram. PW-3 has also supported the version of partition. He identified his thumb impression upon Ex.PW- 2/A and stated that ‘Lohsar’ khasra No. 1155 was in possession of the plaintiff. PW-4 has also deposed that after the partition, the suit land bearing Khasra No. 1155 fell to the plaintiff’s share. The defendant has examined himself and stated on oath that deceased Fula Singh effected the partition 11-12 years before the suit land was kept by him as ‘Burang’ which included Khasra No. 1155 also. He was in possession of the suit land after the sale deed executed in his favour by his father. DW-2 has also stated that the suit land was kept by deceased defendant No.3 as Burang. DW-3 has deposed that the suit land was kept by deceased defendant No.3 for his maintenance. Mr. Ajay Kumar, Advocate has drawn the attention of the Court to Ex.PW-2/A. He forcibly argued that Ex.PW-2/A was the instrument of partition and the same was required to be registered. I have gone through the contents of Ex.PW-2/A. The phraseology employed in Ex.PW-2/A shows that the same is a memorandum and not the partition deed. It was thus neither required to be compulsorily registered nor stamped. 6 Their Lordships of the Hon’ble Supreme Court in Roshan Singh and others versus Zile Singh and others, AIR 1988 SC 881 have spelt out the difference between family arrangement and partition. Their Lordships have held as under: “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 S. 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.” The land in question i.e. Khasra No. 1155 was allotted to the plaintiff in the family partition. The partition was effected in the year 1985. He was in possession of the same. This is proved from the bare perusal of Ex,PW-2/A. This version is duly supported by PW-2, PW-3 and PW-4. The land which has been sold by Fula Singh to defendants No.1 and 2 vide sale deed Ex.PA bearing khasra No. 1155 was in possession of the plaintiff. The same could not be sold by him. 7 In view of the above reasoning and after going through the evidence, the conclusion which can be drawn is that the deceased Fula Singh could not sell Khasra No. 1155. The plaintiff was in possession of Khasra No. 1155. Ex.PW-2/A being a memorandum was neither required to be registered under the Registration Act nor stamped. Accordingly, there is no merit in the Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 17.3. 2009 (Rajiv Sharma ), J. *awasthi*