1 SA153/95 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 153 OF 1995 Radhakrishna s/o Anandrao Kulkarni, Age 50 years, Occupation Government Service and Agriculture, Resident of Wadi Kalya, Taluka Ambad, District Jalna Appellant V E R S U S Prabhakar s/o Pandharinath Ekante, Aged 56 years, Occupation Agriculture, Resident of Wadi Kalya, Taluka Ambad, District Jalna Respondent Shri S.P. Deshmukh, Advocate for the appellant Shri R.S. Deshmukh, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 26th July, 2011 ORAL JUDGMENT : 1. This second appeal is filed against the concurrent findings of the Courts below that the appellant / defendant could not show title to the suit property, and so, he should deliver possession of the suit property back to the respondent / plaintiff. The facts leading to the litigation are as under : 2. Respondent Prabhakar, Anandrao and Baburao were brothers. The appellant is the son of Anandrao. The suit property is land block No. 194 to the extent of 4 Hectare on the western side. The total area of the land block No. 194 is 8 Hectare. The remaining eastern part of the land is admittedly in possession of the respondent / plaintiff. It is the case of the respondent / plaintiff that since prior to 1950, he was exclusively cultivating the suit land as tenant and that he was declared as tenant under the provisions of Hyderabad Tenancy and Agricultural Lands Act, 1950. He said, thereafter, he completed formalities for perfecting his title. He said, in 1981, he filed a 2 SA153/95 suit against the appellant / defendant in respect of this very land seeking perpetual injunction for preventing him from interfering in his exclusive possession. This suit remained pending till 1982 when it was dismissed. It is the case of the respondent / plaintiff that soon thereafter the appellant/defendant dispossessed him from the western portion of land block No. 194, and so, he filed suit for recovery of possession in 1985. The appellant/defendant took up a stand that family of respondent Prabhakar, his brothers Anandrao and Baburao was joint in 1950. The joint family was possessing the suit land, as tenants. He thereby suggested that though the revenue record/tenancy record showed the name of respondent/plaintiff as tenant, he was not the tenant in his personal capacity, but he was representing the joint family. He said, in 1962, the respondent/plaintiff and his brothers Anandrao and Baburao effected partition of their joint family property. He said, the land block No. 194 was divided amongst respondent/plaintiff Prabhakar and Anandrao in such a manner that Anandrao got western half of the land and the eastern half of the land was given to the respondent/plaintiff. In the alternative, he also took up a stand that suit was barred by limitation. 3. The crucial questions of fact before the trial Court and first appeal Court were therefore as under : 1.Whether the respondent / plaintiff held the land as tenant in the capacity of representative of joint family comprising of himself and his two brothers ? 2.Whether the partition took place in 1962, in which land block No. 194 was divided into two parts ? 3.Whether the appellant / defendant could prove his title by adverse possession ? 3 SA153/95 On all questions of fact, the Courts below concurrently held that it was the respondent/plaintiff who held the land in his individual capacity as a tenant and his brothers Anandrao and Baburao had no concern with it. The Courts below also held that there occurred no partition in 1962. The Courts below further held that until 1982 or so, the respondent/plaintiff was in possession of the land and he was dispossessed by the appellant/defendant. 4. When the appeal was admitted, following two substantial questions of law were formulated : (1) Whether the Courts below erred in interpreting and applying provisions of Section 50-B of the Hyderabad Tenancy and Agricultural Lands Act (for short, ‘HTAL Act’) ? (2) Whether the Courts below committed error of law in interpreting documentary evidence viz. Exh. 35 and 39, which bound the plaintiff ? 5. The learned Advocate appearing for the respondent conceded that the Courts below indeed erred in interpreting and applying provisions of Section 50-B of the Hyderabad Tenancy and Agricultural Lands Act (for short, ‘HTAL Act’). The answer to this question is thus in affirmative, and the discussion on this point, appearing in the Judgments of the Courts below, is held to be incorrect. The Courts below read Section 50-B of the HTAL Act incorrectly. Section 50-B of the HTAL Act earlier read as under : “50-B. (1) No land purchased by a tenant under sections 38, 38A, 38E, 38F, 38G, 38H or 46 D or 48, or sold to any person under section 53F, 53G, 53H, or 98C shall be transferred by sale, gift, exchange, mortgage, lease or assignment or partitioned without the previous sanction of the Collector. (2) Any transfer or partition of land in contravention of sub-section (1) shall be invalid. In 1982, this Section was amended as under : 4 SA153/95 “50-B. (1) No land purchased by a tenant under sections 38, 38A, 38E, 38F, 38G, 38H or 46 D or 48, or sold to any person under section 53F, 53G, 53H, or 98C shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector. (2) Any transfer of land in contravention of sub-section (1) shall be invalid. This amendment was made with retrospective effect. So the word “partition” stood deleted with retrospective effect from this provision, the argument based on this provision is not available to the respondent/plaintiff. As said above, since the learned Advocate appearing for the respondent/plaintiff fairly conceded to this, there is no need to further discuss this point. 6. Exh. 39 is the partition-deed. The learned Advocate for the appellant asserted that this document ought to have been read in evidence. He placed reliance on the Judgment of Supreme Court in the case of The Commissioner of Income-tax, Gujarat v. Keshavlal Lallubhai Patel (AIR 1965 SC 866). In order to appreciate the submissions made at bar on this document, one must read the document carefully. With the help of the learned counsel appearing for the parties, I tried to translate this document as under : “Partition-deed of 1962. Brothers Baburao and Prabhakar (Prabhurao) of Anandrao execute the partition-deed as under. Land survey No. 101/1, admeasuring 20 Acre. Half of this land towards west side fell to the share of Anandrao. In addition to this, Anandrao would also get certain share of residential house and a cow. Anandrao should give Rs.500/- to one Laxminarayan. As mentioned above, the parties shall enjoy their shares accordingly”. 5 SA153/95 This document (Exh.39) cannot be said to be a memorandum of a partition that was already effected orally between the parties. Although Anandrao, in whose favour this document was written, has not put his signature, yet it cannot be said that his brothers Baburao and Prabhakar jotted down particulars of the document made earlier between the parties. The document clearly mentions that through it the partition had been effected. The Judgment of the Supreme Court, cited supra, deals with word “transfer” appearing in Section 16 of the Income Tax Act, 1922. The Supreme Court held that the word “transfer” used in that Section was used in the strict sense and not in the sense of ‘including every means by which the property may be passed from one to another’. The Supreme Court on facts held that the transfer that took place between an assessee of income tax and his family members through a partition-deed was not in strict sense a transfer. 7. The law on the subject of partition-deed and its registration is discussed elaborately in the case of Kale and others v. Deputy Director of Consolidation and others (AIR 1976 SC 807, in which the Supreme Court inter alia held as under : “The family arrangement may be even oral in which case on registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and is, therefore, not compulsorily registrable.” 6 SA153/95 I think, the law discussed by the Supreme Court in this Judgment is applicable to the facts of this case, and I am in agreement with the Courts below when they held that the document (Exh.39) cannot be read in evidence for want of registration. 8. Unfortunately, the second document (Exh.35) has not been discussed by the Courts below though such discussion was necessary in order to appreciate the defence of the appellant / defendant. Before I give the details of the document (Exh.35), I must make mention of the disputed factual aspects of the case. On one hand, the respondent/plaintiff came with a case that the entire land gat No. 194, admeasuring 8 Hectare is his self acquired property, and, on the other hand, the appellant/defendant came with a case that this could not be possible, because, in 1950, the three brothers, mentioned above, formed a joint family. The question of fact before the lower Courts thus was, whether the respondent/plaintiff could have been an independent person who could cultivate the suit land since 1950 as a tenant. In the cross-examination, the respondent/plaintiff admitted that in 1981, when he filed the suit, he mentioned his age as ‘37 years’. This admission shows that the respondent/plaintiff admitted that his date of birth would be around 1944. Assuming that there is a margin of error, I am inclined to hold that his date of birth is around ‘1940’. The provisions of HTAL Act came into force in 1950, and on the tillers day of 1954, the tenant is declared ‘owner’. One should therefore assume that the respondent/plaintiff was cultivating the suit land as tenant in 1954. As said above, on that day, he could not be more than 14-15 years old. He was then a minor. In view of this, there is more possibility that he was member of a joint family consisting of he and his two elder brothers and his name was mentioned as tenant as ostensibly as a representative of a joint family. This aspect has not been considered and 7 SA153/95 completely ignored by the Courts below. They were impressed mainly because the Certificate of Tenancy was issued in 1958 in the name of respondent/plaintiff and since the certificate was not challenged by his brothers, he would be the sole tenant and the property would be his self acquired etc. This finding, in my view, is perverse, because, the Courts below ignored the above mentioned factual aspects of the case. This finding would get further support if one reads document (Exh.35). The document (Exh.35) if translated would read as under : “Agreement of 20th December, 1971. Prabhakar executed this agreement in favour of Radhakrishna s/o Anandrao. He stated that a partition was effected between him and Anandrao, the father of Radhakrishna, in 1962. In such partition land survey No. 101/1, admeasuring 9 Acres 35 Gunthas had fallen to the share of Anandrao. The deed of partition was executed in 1962. Since then, this land is in possession of Anandrao / Radhakrishna. Prabhakar has no concern whatsoever with this land. However, in 7/12 extract, Prabhakar’s name is mentioned as cultivator of this land. Using this agreement, Radhakrishna is permitted to get name of Prabhakar deleted from 7/12 extract and get his name as owner included there.” This document was proved by the witness to this document. The Courts below exhibited this document. The question is, whether this document can be read in evidence, and if it is read, how would it affect the case of the appellant/defendant. From the contents of the document, it is seen that it is mere recital of what has already taken place: the partition of 1962. A mention of 1962 partition was made there and it is also mentioned that pursuant to such partition the suit land was given in possession and cultivation of Anandrao. It is thus clear that it only records a previously completed partition. In view of this, this document is rightly exhibited in evidence. 8 SA153/95 9. The Judgment of the Supreme Court in the case of Roshan Singh and others v. Zile Singh and others (AIR 1988 SC 881), which is shown by the plaintiff/respondent’s Advocate can be relied upon to hold that this document did not require registration and can be admitted in evidence. As said above, this document was otherwise properly proved by examining the witness. But, the Courts below did not minutely examine the purport of this document and did not appreciate the same. This document clearly mentions that there occurred partition between Prabhakar, the respondent on one hand and Anandrao, his brother, on the other. It also mentions that in the partition of 1962, the suit land was given to the share of Anandrao, and Anandrao started cultivating the same. The reason why this document was executed in 1971 is also clear from the contents of the same. It is specifically mentioned in the document that despite partition in 1962 and separate possession given to Anandrao, his name did not appear in 7/12 extract as owner and cultivator. Prabhakar, through this document, permitted son of Anandrao, the present appellant Radhakrishna, to move appropriate application to the revenue officer and get his name included as owner and possessor and get the name of Prabhakar deleted. The respondent/plaintiff Prabhakar simply denied execution of this document. This document is, as said above, properly proved and should be used in evidence, and if this document is properly read, it would clearly prove that the respondent Prabhakar not only executed it, but admitted that the suit land was given to the share of Anandrao and even the possession of the same was handed over. This admission and contents of this document should estop the plaintiff from saying what he has stated in this case. This document clearly falsified his entire case. In view of this, second appeal should succeed and respondent/plaintiff’s suit should fail. The appeal is allowed. The impugned 9 SA153/95 Judgment and decree stands set aside. The suit of the respondent stands dismissed. ( A.V. NIRGUDE, J. ) SRM/sa/153/95/26/7/11/ok