IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.12 of 2000 Date of decision : April 27, 2010 Bhuvnesh Chand …Appellant. Versus Banwari Lal and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. K.D. Sood, Advocate. For the Respondents : Pt. Om Prakash, Advocate, with Mr. Rajinder Sharma, Advocate. Surjit Singh, J (Oral) This appeal by the plaintiff is directed against judgment and decree, dated 1st October, 1999, of learned District Judge, whereby appeal filed by the plaintiff- appellant against the judgment and decree, dated 27th July, 1998, of learned trial Court, has been dismissed and the said judgment and decree of the trial Court, dismissing the suit of the plaintiff-appellant, have been affirmed. 2. Facts relevant for the disposal of the appeal may be noticed. Plaintiff-appellant Bhuvnesh Chand, his brother Banwari Lal and his sister-in-law Ahilya Devi, wife of another brother of his, purchased 512.03 sq.m land bearing Khasra Nos.1704, 1705, 1706, 1707, 1708, 1709, 1710 and 1713, in the year 1959, through sale deed Ex. PW-1/B. Whether reporters of the local papers may be allowed to see the judgment? …2… Each of the three purchasers had 1/3rd share. Plaintiff filed an application before the Revenue Officer concerned for partition of the property. The Revenue Officer, vide order dated 21st December, 1992, directed that complicated questions having been raised, the matter required adjudication by Civil Court. Thereafter, the plaintiff filed suit for partition of the property. He impleaded his co- sharers, i.e. his brother Banwari Lal and his sister-in-law Ahilya Devi, as defendants in the suit. In addition to seeking partition of the property and separation of his 1/3rd share, he also sought recovery of a sum of Rs.3,600/-, as use and occupation charges of a portion of the suit land occupied by the defendants, in excess of their 1/3rd share each. 3. Suit was contested by the defendants- respondents, who set up the plea of private partition. It was stated that a private partition had taken place in the year 1969 and a writing regarding that partition was also prepared, which is Ex. PW-1/D. It was stated that that partition had been given effect to in the revenue record also and the parties were recorded in separate possessions of different khasra numbers and that separate Khataunis numbers were assigned, in respect of the Khasra numbers allotted to the parties. 4. Various issues were framed by the trial Court, on the pleadings of the parties. Parties went to trial. At the …3… end of the trial, it was concluded that there had been a private partition between the parties and the parties were in separate possession of their shares, after the said private partition. Consequently, the suit was dismissed. Appeal filed by the plaintiff-appellant in the Court of learned District Judge stands dismissed. 5. Present appeal was admitted on the following substantial questions of law: 1. Whether the plea of the private partition could be sustained on the basis of document Ex. PW-1/D when admittedly the same had not been acted upon and the property continued to be joint in the revenue records, i.e. Ex. PW 1/A to which presumption of truth is attached? 2. Whether the findings of the court below are vitiated for non-consideration of material evidence and findings being based on inadmissible oral and documentary evidence particularly when the claim of the plaintiff for the recovery of use and occupation charges was established? 6. I have heard the learned counsel for the plaintiff-appellant as also for the defendants-respondents and gone through the evidence. 7. Admittedly, the suit property is land assessed to revenue. It was because of this reason that the plaintiff applied to the Revenue Officer for the partition of the land. Also, jamabandi, pertaining to the suit land, copy Ex. PW- 1/A, shows that the land is assessed to revenue. 8. Procedure for partition of the land, assessed to revenue, is given in H.P. Land Revenue Act. As per Section …4… 135 of the H.P. Land Revenue Act, private partition of land, assessed to revenue, can also take place and after such partition takes place, the same is reported to the Revenue Officer, who prepares the instrument of partition and also follows some of the provisions pertaining to the procedure of partition, by his order, on the application of the parties or one/some of them. 9. In the present case, defendants have relied upon document Ex. PW-1/D. According to this document, private partition had taken place between the parties and in terms of that partition defendant Ahilya Devi retained the old house and the site thereunder, the area of which was more than 1/3rd of the total area of the land and because of this she paid a sum of Rs.6,900/- to the plaintiff and other co-sharers. Plaintiff was allotted 139.26 sq.m area, bearing Khasra Nos.1704 and 1705. This position is borne out from writing Ex.PW-1/D and Jamabandi for the year 1987-88, copy Ex. PW-1/A. 10. Plaintiff, while in the witness-box as PW-1, admitted that a private partition had taken place and in terms of that private partition, he was in possession of 139.26 sq.m area upon which he had constructed a house in the year 1979. He also admitted that entries in the revenue papers, showing the parties in separate possession of different Khasra numbers entered against different Khataunis, had also been incorporated. Not only this, he …5… even admitted that the parties had been paying separate revenue, in respect of the land that fell to their shares in private partition. 11. Learned counsel for the plaintiff submits that writing Ex.PW-1/D cannot be used as evidence, on account of its being unregistered. No doubt, the document is not registered, but from a careful reading of this document, it appears that the wording employed is in the present perfect tense, suggesting that the partition took place before this writing was prepared. It appears from an overall reading of the document that the partition did not take place long before the preparation of the document but probably on the very day of the preparation of this document, but the use of present perfect tense suggests that it did take place before the writing was prepared. Therefore, in my considered view the document is to be taken to be a memorandum of family settlement or family partition and, hence, not compulsorily registerable. 12. Otherwise also, the partition appears to have been given effect to in revenue papers, though not strictly in accordance with the provision of Section 135 of the H.P. Land Revenue Act. As already noticed, in Jamabandi for the year 1987-88, copy Ex. PW-1/A, the property has been divided into three separate Khataunis and each Khatauni has been recorded in separate possession of the three co- sharers. Admission by the plaintiff that he himself got …6… recorded his possession over Khasra No.1705 in the revenue papers belies his plea that private partition had not been given effect to in the revenue record. In any case, the fact that the parties have constructed their separate houses on the areas allotted to them and they are paying revenue separately, as admitted by the plaintiff, indicates that they have separated by metes and bounds. The fact that respondent Ahilya Devi paid money to the plaintiff and other co-sharers to compensate them for the house and extra area allotted to her, also strengthens the plea of partition by metes and bounds. In view of the abovestated position, both the substantial questions of law, on which the appeal was admitted, are answered against the plaintiff-appellant and consequently the appeal is dismissed. April 27, 2010(sd) ( Surjit Singh ), J