RSA No.4377 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4377 of 2011 (O&M) Date of Decision: 14 .11.2011 Nitin Mohan Nagpal ...Appellant Vs. Niren Mohan Nagpal .....Respondent BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest. --- Present: Mr.Amit Rawal, Advocate, with Mr.Aman Arora, for the appellant. Mr.Lokesh Sinhal, Advocate, for the respondent-Caveator. --- A.N.Jindal, J. The defendant/appellant has challenged the judgment dated 25.08.2011 passed by the Additional District Judge, Faridabad upholding the judgment dated 25.11.2010 passed by Civil Judge (Junior Division), Faridabad. RSA No.4377 of 2011 2 The plaintiff/respondent (herein referred as the plaintiff) had filed a suit for declaration claiming himself to be the owner in possession of agricultural land measuring 66 kanal 1 marla situated in Mauja Firojpur Kalan, Tehsil Balabgarh District Faridabad as fully detailed in the heading of the plaint claiming himself to be the brother of defendant No.2/ appellant (herein referred as defendant No.,2). Defendant No,.1 was their father. He being the Karta of the joint Hindu family had purchased the suit property in his name vide three registered sale deeds bearing Nos. 11687 and 11685 both dated 18.1.1984 and sale deed No.17573 dated 10.2.1984. Property has been earlier leased out by the previous owner in favour of defendant No.2 vide two different deeds Nos. 11683 and 11684 both dated 18.1.1984. The defendant No.2 had transferred the leased out rights of the said property in favour of plaintiff vide document No.2396 dated 24.6.2005. Thereafter, a dispute arose between the parties and family settlement took place between them whereby defendant No.1 i.e. the father of the plaintiff relinquished all his ownership rights qua the property in favour of the plaintiff. Both the defendants i.e. the appellant and his father had acknowledged the plaintiff to be the absolute owner in possession of the suit property from the time of the agreement. They had also assured that records regarding the suit property would be got corrected in his favour. But that could not be done, therefore, the suit had to be preferred by Niren Mohan Nagpal plaintiff on 10.09.2005. Defendant No.2 and his father defendant No.1 contested RSA No.4377 of 2011 3 the suit denying family settlement dated 20.6.2005 on the ground of being sham, bogus and fraudulent document. It was also alleged that the said document was never acted upon and same being unregistered is not binding on the defendants. It was further clarified that lease in favour of the plaintiff was an independent transaction which does not strengthen his claim. Alleged family settlement is not a valid document for relinquishment of ownership rights by defendant No.1 in favour of the plaintiff. Defendants do not recognize their rights on the basis of alleged family settlement. No replication was filed. From the pleadings of the parties, the following issues were framed by the Additional Civil Judge, Faridabad on 24.10.2007. 1. Whether the plaintiff is owner in possession of agricultural land as detailed in para No.1 of the plaint? OPP 2. If issue No.1 is proved then whether the plaintiff is entitled for the relief of declaration as prayed for? OPP 3. Whether the suit is bad for want of proper court fee? OPD 4. Whether the suit is liable to be dismissed under Order 7 Rule 11 CPC? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Relief. RSA No.4377 of 2011 4 Both the parties led evidence. Trial court after scrutiny of evidence while acknowledging the settlement dated 20.06.2005 decreed the suit of the plaintiff. Appeal filed by defendant No.1 was also dismissed. It would be necessary to mention here that defendant No.1 (Inder Mohan Nagpal) had died during the pendency of suit and he did not file any appeal. Arguments heard. Record perused. There is no dispute between the parties that the suit property was owned by joint Hindu family comprised of the plaintiff and defendant No.2. It is also not in dispute that defendant No.1 (deceased) being the Karta of the family had purchased or taken property on lease in his name. Family settlement dated 20.06.2005 i.e. the memo of partition Ex.P.5 came into existence which reveals that the suit property was being owned by defendant No.1 (deceased) being Karta of the Hindu undivided family and they had also entered into family settlement dated 20.4.2005 but in order to recognize the said family settlement they had also again entered into memo of partition vide agreement dated 20.6.2005. The document Ex.P.5 on perusal does not confer any rights in presenti but regulates earlier family settlement dated 20.4.2005 which has been scribed in the form of memo of family settlement. The execution of the document stands duly proved. Apart from the testimonies of defendant witnesses even RSA No.4377 of 2011 5 the defendant No.1 during his cross-examination has admitted having signed the said memo of settlement Ex.P.5 after reading it carefully. He has also admitted all the terms and conditions mentioned therein when these were specifically put to him. He has also admitted that he had sold the lease hold rights existing in his favour as on that day to the plaintiff vide sale deed Ex.P.11 in compliance with the compromise of the aforesaid settlement. He has also admitted in clear words that he had himself acted upon memo Ex..P.5 by executing the lease deed Ex.P.11. Thus, the question of raising the dispute with regard to the fact that memo of partition Ex.P.5 was the result of fraud or a bogus document, does not arise. As regards the argument that since the settlement dated 20.4.2005 has not seen the light of the day till today, therefore, the document Ex.P.5 cannot be said to be valid document because of non-production of earlier family settlement, is of no merit. Document Ex.P.5 was reduced into writing only to recognize the earlier family settlement which is duly recognized under the Transfer of Property Act, 1882 and the Registration Act, 1908 also exempt such document from registration. It is also well settled by now that even oral partition is permissible and such oral partition or much less written one, if is recognized by a latter document which is known as memo of partition, does not require registration. Under these circumstances, it would not be proper to hold that in the absence of earlier family settlement. The memo of partition Ex.P.5, cannot be given any RSA No.4377 of 2011 6 significance. Even otherwise, basis of the suit of the plaintiff was memo of partition executed between the parties which has been admitted by the defendant No.1 and not the previous family settlement. Therefore, non-production of document which came into existence between the parties earlier loses significance. Both the courts below have recorded concurrent findings of fact on the issues as framed by the trial court on appraisal of entire evidence on record in right perspective and there is no ground to dissent from the findings as recorded by the courts below. No question of law much less substantial question of law arises in this appeal for determination. Dismissed. (A.N.Jindal) 14.11.2011 Judge rp