IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 358/1995. Judgment reserved on 2.1.2008. Date of Decision: 9th January, 2008. Shri Kehar Singh … Appellant Versus Shri Tape Ram …. Respondent. Coram The Hon’ble Mr. Justice Dev Darshan Sud,Judge. Whether approved for reporting?1 For the Petitioner: Mr. Bhupinder Gupta, Sr. Advocate with Mr. Neeraj Gupta, counsel for the appellant. For the Respondents: Mr. Ajay Mohan Goel, counsel for the respondent. Dev Darshan Sud, Judge. This appeal has been preferred by the plaintiff- appellant against the judgment and decree passed by the Additional District Judge, Kullu passed in Civil Appeal No. 5/1994 on 7.6.1995 affirming the judgment and decree passed by the learned Sub Judge, Kullu, in Civil Suit No. 39/1991, dismissing the suit of the plaintiff. The appellant herein, as noticed is the plaintiff who instituted a suit against the defendant for permanent prohibitory and mandatory injunction on the allegations that he is the owner in possession of the suit land to the extent of 1/4th share along with 1 Whether Reporters of Local Papers may be allowed to see the judgment? - 2 - other co-sharers in land comprised in khata Khatauni No. 73 min/143 min khasra Nos. 241 and 242 as recorded in the Jamabandi for the year 1987-88 situated in Phati Barahar Kothi Maharaja Tehsil and District Kullu, H.P. The plaintiff alleges that defendant being a very quarrelsome person who will resort to using force to raise construction over the suit land and would occupy the most valuable part of the property. The suit was contested by the defendant/respondent on a number of grounds including the fact that the plaintiff is out of possession, he is not the owner of the land as a co-sharer as by an agreement in writing dated 15.2.1990 Ext. DW-1/A, the plaintiff had exchanged his share in the suit land with that of the defendant and handed over the possession thereof to him, as a result of which the defendant had made improvements over the suit land by investing more than Rs. 80,000/-, raised an orchard and is in continuous possession as owner without let or hindrance. The learned trial court appointed a Local Commissioner who visited the spot and reported that one and a half storied house of the defendant/respondent exists on the suit land. The trial court, framed five issues and held that the suit was not maintainable as on a conspectus of the evidence, the plaintiff had not been able to establish his exclusive possessory or titlor right. The court considered the writing Ext. DW-1/A executed on 15.2.1990 with which the plaintiff/appellant was confronted and he admitted his signatures thereon. The learned court holds that the - 3 - writing is proved not only by the admission of the plaintiff but also by the defendant and his witnesses. On the totality of the evidence, trial court holds that pursuant to this writing Ext. DW-1/A the defendant had been put in possession over the suit land and had constructed his house thereon. The suit was accordingly dismissed. In appeal, the judgment of the trial court was upheld. The learned appellate court held that the writing Ext. DW-1/A has been scribed by one Nanak Chand DW-2 who is document writer. He says that this document was written at the instance of Kehar Singh who acknowledged and accepted the contents of this document to be true and correct in the presence of the witnesses. He is known to both the parties as he is brother-in-law of the defendant- respondent and the sister of his wife is married to the plaintiff. One of the points raised for determination before the trial court is that even if the execution Ext. DW-1/A is proved it being unregistered, cannot be read in evidence as it involves exchange of immoveable property of value of Rs. 100/- and above. For this purpose, provisions of Section 118 of the Transfer of Property Act, 1882 were invoked by the appellant. It was his contention before the appellate Court that without registration, this document cannot be looked in to in any manner whatsoever. While dealing with the case, the learned court relied upon a decision of Gulab Singh and another vs. Smt. Dilbaru and others (1988) 1 SLC 340 holding that the provision of Section 118 of the Transfer of Property Act was not applicable to District Kullu. The appellate Court then holds that even if the provisions of Section 118 of the - 4 - Transfer of Property Act are applicable, the possession of the respondent herein was protected by Section 49 of the Registration Act. The appeal has been admitted on following substantial questions of law:- “1.Whether the factum of exchange could be held in favour of the defendant in the absence of any proof that agreement Ext. DW-1/A was ever acted upon between the parties and in the pursuance of the said agreement either some mutation has been attested or the plaintiff-appellant has been put in possession of the land of the defendant proposed to be given to him in exchange? 2.Whether a co-sharer can be permitted to raise construction on the joint holding without partitioning the said property? 3.Whether Ext. DW-1/A was inadmissible in evidence for want of registration?” The first question framed for consideration is whether the factum of exchange is not established as the agreement Ext. DW-1/A was never acted upon by the parties. It was urged by the learned counsel for the appellant that evidence on the record does not establish this fact. This contention cannot be accepted. Besides the fact that the question raised is purely one of fact, the oral evidence on the record does not justify the submissions made on behalf of the plaintiff that this agreement was never acted upon. As noticed above, both the courts below have come to a conclusive finding that the defendant had been put in possession of the land pursuant to the exchange and that he had constructed upon the land - 5 - after exchange had been acted upon by both the parties. I do not find anything in the evidence of the plaintiff or in the cross- examination of DW-1 defendant or DW- 2 Nanak Chand who is the scribe of the deed which rebuts this fact. DW-3 Narinder Singh, DW-4 Shri Tara Singh, who have stated that the defendant was put in possession of the land. Both the courts below have believed these statements and there is nothing to the contrary on the record. The findings on this point cannot be interfered with as they are neither perverse nor against the evidence brought on the record of the case. The next question is whether a co-sharer can be permitted to raise construction on the joint holding without partitioning the said property?. On this question, all that can be said is that the relationship having been severed by the plaintiff who admitted his signatures on the document Ext. DW-1/A and did not bring any evidence to the contrary to show that the writing was executed without his consent and knowledge or that he was not a party to such writing, the case of the plaintiff cannot be accepted. Learned counsel appearing for the appellant has placed reliance on a decision of the High Court of Punjab in Sant Ram Nagina Ram vs. Daya Ram Nagina Ram and others AIR 1961 Punjab 528, to urge that a co owner cannot usurp best part of the property for himself. This proposition of law is by now well settled. Whether a person is co-sharer or not is a question of fact and not an inference of law to be drawn without factual foundation. The third question is whether Ext. DW-1/A was inadmissible in evidence for want of registration. On this question, - 6 - learned District Judge has relied upon the decision of this court in Dilbaru’s case (supra) showing that provisions of Section 118 of the Transfer of Property Act were not applicable to the facts of the case. Alternately, the learned Judge holds that even if document requires registration, it can be looked into for purposes of possession. Section 49 of the Registration Act, 1908 deals with consequences of non registration of a document. It provides:- “49. Effect of non-registration of documents required to be registered.- No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall- (a) Affect any immovable property comprised therein, or (b) confer any power to adopt, or ( c ) be received as evidence of any transaction affecting such property or conferring such power, Unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument.” - 7 - The proviso to the Section is important which has been the subject matter of consideration in a number of judicial pronouncements. Learned counsel for the respondent has placed reliance on the judgments of N. Varada Pillai and another vs. Jeevarathnammal AIR 1919 PC 44, Vishvanath Haibatrao Deshpande vs. Ranganath Dhondo Deshpande and others AIR 1942 Bombay 268, Sant Ram Nagina Ram vs. Daya Ram Nagina Ram and others AIR 1961 Punjab 528, Padma Vithoba Chakkayya vs. Mohd. Multani and another AIR 1963 SC 70, Hamda Ammal vs. Avadiappa Pathar and others (1991) 1 SCC 715 and Shankru and others vs. Suharu Devi and others (2001) 1 SLC 502. All of them need not be reproduced in detail as the principle is by now well settled. In Hamda Ammal vs. Avadiappa Pathar and others (1991) 1 SCC 715, the Hon’ble Supreme Court held:- “5.We cannot accept the contention of learned counsel for the respondent that till registration, the execution of the sale deed does not confer any rights whatsoever on the vendee. Even Section 49 of the Registration Act in its proviso inserted by Section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929, negatives the above contention of the learned counsel. The above provision lays down that an unregistered document affecting immovable property and required by this Act or by the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as an evidence of part performance of a - 8 - contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument. Thus even an unregistered document can be received as evidence for purposes mentioned in the proviso to Section 49 of the Registration Act.” Even if it is held that the document Ext. DW-1/A does not transfer title or extinguish the rights of the plaintiff, it can still be looked into to determine the nature of possession of the defendant. Two more decisions need be noticed. In Nirmal Singh and others vs. Gurbachan Singh AIR 1988 Punjab and Haryana 184, the High Court of Punjab and Haryana held that an unregistered document of partition of land would not be admissible except to prove the factum of partition and the nature of possession. The court holds that oral evidence is admissible to prove that there was partition of land between the co-sharers and that parties have entered into separate possession of their respective portions in accordance with partition. To similar effect is the judgment of the High Court of Madras in C.S. Kumaraswami Gounder vs. Aravagiri Gounder and another AIR 1974 Madras 239 holding that:- “10……………………Thus it will be seen that in the case of an express, completed partition there will be three different stages- (i) the stage of effecting a division in status, (ii) the stage of dividing the properties by metes and bounds, and (iii) the stage of each party taking possession of the properties allotted - 9 - to his share. As far as these three stages are concerned, it is conceded, having regard to the decided cases, that each and every one of them can be effected orally without there being a document. Even if there is a written document in respect of the first and third stages, then also it is conceded that the document does not require registration, because neither the division in status nor the actual taking possession of the properties can be said to create, declare, assign, limit or extinguish any right, title or interest to or in immovable property. Therefore, it is only with regard to the second stage, namely, division of properties in different shares and allotment thereof to the various members, if the same is reduced to writing, it requires registration under Section 17 (1) (b) of the Act…………” It would thus be clear that the factum that the parties are in separate possession can be ascertained from Ext. DW-1.A. I have held that the factum of possession of the defendant already stands established as a fact and the plaintiff cannot be allowed to say that the possession is still joint. In the facts and circumstances of the case, there is no merit in this appeal which is accordingly dismissed. There shall be nor order as to costs. 9th January, 2008. (Dev Darshan Sud), (cm) Judge.