IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA 9 of 2009. Decided on October 29, 2010. Saran Dass …Appellant. Versus Ankali & others ..Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the appellant Sh. Lalit K.Sharma, Advocate. For the respondents Sh. G.D.Verma, Sr. Advocate, with Mr. B.C.Verma, Advocate. Surjit Singh, Judge (Oral) This Regular Second Appeal, by the plaintiff, was admitted on the following substantial questions of law, vide order dated 7.1.2009: 1. Whether the learned Court below was justified to dismiss the suit of the plaintiff although, the defendant No. 1 Ankali has admitted the entire claim of the plaintiff while appearing in the witness box as PW2. 2. Whether the partition Fird Ex. P-5 which is admitted by the defendant as family Whether reporters of the local papers may be allowed to see the judgment? - 2 - arrangement required compulsory registration is not a compulsory registered document and the contrary finding is erroneous. 2. Appellant-plaintiff filed a suit for declaration that he and his brother Hirja Nand, impleaded as defendant No. 5, were joint owners in possession, to the extent of ½ share each, of the suit land, to the exclusion of defendants 1 to 4, two of whom are appellant’s sisters and two other are the sons of his pre-deceased sisters. It was stated that about 30 years prior to the institution of the suit, (suit was filed in the year 2003), a family settlement had taken place, in which suit property had been divided between the plaintiff and defendant No. 5, brother of the plaintiff and ever-since, they had been in possession of the suit land, to the exclusion of defendants-respondents 1 to 4. It was stated that family settlement had been reduced into writing Ext. P-5. Plea of adverse possession, in the alternative, was also raised. 3. Defendants, in their written statement, stated that only a family arrangement had been effected through writing Ex.P-5, between the two brothers. They denied that any division or partition of - 3 - property had taken place. Defendants stated that after the death of late Shri Sunder Singh, father of plaintiff and defendants Ankali, Shishpatti and Hirja Nand and grand father of other defendants, property was inherited by all his heirs. 4. Trial Court gave the finding that writing Ex.P-5 did not bind the defendants, as they were not party to it and also because the document had not been registered. To similar effect, is the finding of the learned first appellate Court. Because of this finding, suit was dismissed by the trial Court and appeal filed by the appellant-plaintiff before the first appellate Court, also stands dismissed. 5. I have heard the learned counsel for the parties and gone through the record. 6. From a bare look at and on reading of writing Ex. P-5, it is clear that this was an arrangement between the plaintiff and his brother – defendant No. 5 Hirja Nand. This was not a family settlement or arrangement, made by the owner of the property, i.e. father of the plaintiff and defendants – respondents Ankali, Shishpatti and Hirja Nand. Appellant and defendant No. 5 Hirja Nand made arrangement, vide writing Ex.P-5, during the life time of their father. Admittedly, their father Sunder Singh, - 4 - was the owner of the suit property. When Sunder Singh was alive and was the owner of the suit property and he did not make the settlement, nor was he executant of the writing Ex.P-5, how could have the plaintiff and defendant No. 5, divided the suit property between themselves, ignoring the claim of other legal heirs of their father Sunder Singh, when those other legal heirs were also Class I heirs, as the plaintiff and defendant No. 5, themselves. Thus, writing Ex.P-5 creates no title in favour of the plaintiff and defendant No. 5. Admission, made by defendant No. 5 while appearing as DW-1, or defendant Ankali, while appearing as PW-4, that there had been an arrangement between the two brothers, does not extinguish the right of inheritance of the defendants especially when they are not signatories to Ext. P-5. 6. As a matter of fact, it is borne out from the evidence, in the nature of entries in the revenue papers, proved on record by the plaintiff-appellant himself, i.e. Ex.PW-1/A, copy of missal hakiyat bandobast zadid, Ex.PW-1/C, copy of Jamabandi for the year 1998-99 and another Jamabandi Ex.PW-1/B, that after the death of Sunder Singh, predecessor-in- interest of the parties, suit property was mutated in favour of all his legal heirs, i.e. the plaintiff and all the - 5 - defendants, which fact gives a complete lie to the case of the appellant-plaintiff. 7. For the fore-going reasons, both the substantial questions of law are answered against the appellant and consequently, appeal is dismissed. October 29, 2010 (PC). (Surjit Singh) Judge.