IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 2669 of 2008 Date of decision: December 22, 2011 Bagga Singh .. Appellant Vs. Paramjit Singh and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. D.V. Sharma, Sr. Advocate with Ms. Shivani Sharma, Advocate for the appellant. Mr. Amit Jhanji, Advocate for respondents No.3 to 6. A.N. Jindal, J Having lost before both the courts to claim relief of declaration to the effect that the plaintiff- appellant (herein referred as, 'the plaintiff') is the owner in possession of the land measuring 64 kanals 7 marlas out of the land measuring 229 kanals 9 marlas, as fully described in the heading of the plaint and also for permanent injunction restraining the defendants- respondents from alienating the suit land in any manner whatsoever, he has preferred this regular second appeal. The factual matrix of the case is that the plaintiff and defendants No.1 and 2 are the real brothers. They had inherited the property as fully detailed in the heading of the plaint from their father Dalip Singh. It has been further urged that in an endeavour to make a better living and peaceful life, they had entered into a family arrangement, vide which the defendants No.1 and 2 had relinquished their share in the suit property and the plaintiff in lieu of their share gave them land measuring 185 kanals situated in village Saiwal and he had become the owner of the suit land. The defendants No.1 and 2 have no concern with the suit property. It was also urged that since the suit land was of inferior quality, therefore, the plaintiff was given more land in lieu of his share which he had relinquished in favour of the defendants No.1 and 2, as shown in Fard No.1. A memorandum of family settlement was also reduced into writing on 28.6.1989 which was signed by the parties, according to which the suit land had fallen to his share whereas the land shown in Fard No.2, had fallen to R.S.A. No. 2669 of 2008 -2- *** the share of the defendants No.1 and 2. The defendant No.1 had already sold his share in the total land to the defendants No.3 to 6. As such, he has also challenged the sale deed being wrong, illegal, null and void. The defendants No.1 and 3 filed a separate written statement, wherein they raised some preliminary objections, inter alia, that the suit is not maintainable; plaintiff has no locus standi to file the present suit. On merits, jointness in land was admitted. However, they denied if any family settlement dated 28.6.1989 as alleged came into existence. It was also averred that the defendant No.3 had purchased the share of defendant No.1 for a valuable consideration. The defendant No.2 had also filed written statement whereby he admitted the family settlement. As his interest was not clashing with the plaintiff, therefore, he prayed for disposing of the suit in accordance with the pleadings. From the pleadings of the parties, the trial court framed the following issues :- 1. Whether the plaintiff is entitled to the relief of declaration as prayed for?OPP 2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the plaintiff has no locus standi to file the present suit?OPD 5. Whether the sale deed dated 21.7.1997 executed by defendant No.1 in favourof defendants No.3 to 6 is illegal, null and void and without consideration is not binding on the rights of the plaintiffs? If so, its effect?OPP 6. Relief. R.S.A. No. 2669 of 2008 -3- *** In order to substantiate the issues, the burden of which was upon the plaintiff, he himself appeared as PW-1 and reiterated the pleadings and particularly stated that a family settlement had taken place on 28.3.1989, on the basis of which he became the owner of 64 kanals out of the land measuring 229 kanals situated at village Saiwal, Tehsil & District Jalandhar, whereas, the defendant No.2 had become the owner of the other land measuring 185 kanals situated in the same village. He proved the family settlement and also the sale deed which the defendant No.2 had executed in favour of the defendants No.3 to 6. To the contrary, the defendant No.2 Balwinder Singh had appeared in the witness box and admitted the family settlement, whereas the defendant No.3 on his turn while appearing as DW-1 has challenged the validity of the family settlement and did not deny the sale deed executed by defendant No.2 in favour of the defendants No.3 to 6. The trial court while declining to accept the partition/ family settlement Ex.P1 treated the property as joint of the parties and also held that the sale made by the defendant No.1 was valid and dismissed the suit. The appeal was also dismissed. The substantial questions of law as framed by this Court on 17.11.2010 are re-produced as under :- 1. Whether an unregistered partition deed can be looked into for recording a finding that a particular parcel of the joint land had fallen to the share of a particular co- sharer? 2. Whether the civil court can take cognizance of the private partition amongst the co-sharers which has not been given effect to in the revenue record? The suit has been filed by the plaintiff claiming declaration that he is owner in possession of the land measuring 64 kanals 7 marlas, out of the land measuring 229 kanals 9 marlas. He has not given any particular khasra numbers which were given to him out of the said land. He has not specified so in the plaint. He has also not produced on record any document in order to show his possession over the particular khasra number R.S.A. No. 2669 of 2008 -4- *** which constituted his allocation. He has pleaded his title over 64 kanals 7 marlas of land. The alleged family partition is unregistered document. It has never been acted upon or implemented in revenue records. No shares were distributed and parties are not recorded in possession of the land as per shares shown in the alleged family settlement. Having examined the family settlement, it reveals that Bagga Singh plaintiff along with Balwinder Singh and Paramjit Singh had partitioned the property by way of compromise and the property shown in Fard No.1 attached with the memo of settlement, ½ share was given to Paramjit Singh and Balwinder Singh defendants No.1 and 2 respectively, whereas the property shown in Fard No.2 appended to the memo of settlement was given to Bagga Singh. It was also mentioned in the family settlement that Bagga Singh had ceased to have interest in the property as detailed in Fard No.1 and defendants No.1 and 2 would have no interest in the property shown in Fard No.2. The alleged family settlement, in nutshell, creating right in one party and relinquishing by the other party, requires registration. This family settlement does not recognize any pre-existing rights and this document creating rights in the parties for the first time on the day alleged family settlement requires to be registered. Though a memorandum of family settlement recognizing pre-existing rights does not require registration yet the alleged document is not covered by the category of those documents. As such, the alleged family settlement being unregistered is inadmissible in evidence. Though the learned senior counsel has seriously contended that when the parties are members of the joint family and a private partition takes place between the parties and the parties are recorded in possession and continue in possession of the same as per said private partition then that partition does not require registration and it would be treated, as if the partition had already taken place. With due reverence to the contention raised above, it may be observed that if any such of private partition is acted upon in the revenue record and the parties have been in continuous possession in accordance with the same without disputing the title of each other could be given precedence. But, in this case, it has not not so happened. As per revenue record and admitted facts between the parties, R.S.A. No. 2669 of 2008 -5- *** the alleged family settlement has never been acted upon by the plaintiff- appellant and the defendants- respondents in the revenue record till the filing of the present suit. Even the defendant No.2 had sold the property as per his share considering the property to be joint and considering that no partition had taken place. In order to prove that the alleged family settlement was never implemented, the shelter has been taken from the testimony of the plaintiff who appeared in the witness box as PW-1 and stated that the family settlement was neither produced before the revenue authorities nor was presented in any public office. He has also admitted that Paramjijt Singh respondent- defendant No.2 after selling share of his property had left the village. He also could not tell as to which khasra numbers had fallen to the share of the defendants No.1 and 2. The alleged family settlement Ex.P1 is in the shape of a compromise/agreement and it does not recognize any pre-existing of oral family settlement. The total area of the Fard No.2, which was allegedly allocated to the defendants No.1 and 2 comes to 229 kanals 9 marlas, whereas, the total area of Fard No.1 comes to 178 kanals 8 marlas. In both the parcels of the land there are other different co-sharers. Thus, unless the land is segregated from the other co- sharers, the same also could not be partitioned. As such, the alleged family settlement Ex.P1 is of no consequence. In the result, the substantial questions of law as framed above are decided against the appellant. No grounds to interfere. Dismissed. December 22, 2011 (A.N. Jindal) deepak Judge