IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH RSA No. 1493 of 1988 Date of Decision: April 25th,2008 Jai Singh and another ...........Appellants Versus Chander ..........Respondent Coram: Hon'ble Mrs.Justice Sabina Present: Mr.Ashok Aggarwal, Senior Advocate with Mr.Ashish Chaudhary, Advocate for the appellants. Mr.D.S.Bali, Senior Advocate with Mr.Shaweta Bawa, Advocate for the respondent * * * Sabina, J. This appeal is directed against the judgment and decree dated 25.5.1988 passed by the Additional District Judge in Civil Appeal No. 16/13 of 21/12/1985 upholding the order passed by the Sub Judge First Class Bahadurgarh dated 13.11.1985 whereby the suit for partition was dismissed. The case of the plaintiffs, as stated in the plaint, was that they were owners in possession of the suit property along with defendant. Plaintiffs had half share in the suit property whereas the defendant also had half share in the suit property. It was alleged by the plaintiffs that the suit property was still joint and they could not enjoy the same and as such sought partition of the suit property. Defendant in his written statement denied the contentions in RSA No. 1493 of 1988 -2- the plaint. It was averred that the suit property had been partitioned in the year 1961 and the parties were in possession of their respective shares as per the partition. On the pleadings of the parties, the following issues were framed before the trial Court:- “1. Whether the property in dispute is joint property of the parties? If so,to what effect?OPP 2. Whether the plaintiffs are entitled to get the property partitioned?OPP 3. Whether the suit is time barred?OPD 4. Whether the suit is bad for partial partition?OPD 5. Whether the plaintiffs have no locus standi to file the present suit?OPD 6. Whether the defendants are entitled for special costs as envisaged under Section 35-A CPC?OPD 7. Relief” The trial Court dismissed the suit of the plaintiffs. Aggrieved by the same, the plaintiffs preferred an appeal and the same was dismissed by the Additional District Judge, Rohtak vide judgment and decree dated 25.5.1988. Hence, the present appeal. Learned counsel for the appellants in writing submitted that following substantial questions of law arise in this case:- “1. Whether or not the judgment passed by both the courts below is against the well settled provisions of law, that the person who is claiming benefit out of any document has to prove the said document? RSA No. 1493 of 1988 -3- 2. Whether or not both the learned courts below have not appreciated the facts and circumstances of the present case? 3. Whether or not any reliance can be placed on an unregistered hand written document stated to be the alleged family settlement? 4, Whether or not the onus to prove the genuineness of family settlement was on respondent? 5. Whether or not the evidence led before the learned courts below has been misread or misconstrued. 6. Whether any reliance can placed on an unregistered family settlement? 7. Whether or not a family settlement can have binding effect on the person who are not party to it? I have heard the learned counsel for the parties and gone through the record of the case available on the file. Learned counsel for the appellants has argued that the Courts below had erred in dismissing the suit of the plaintiffs. The suit property was still joint between the parties. No reliance could be placed on Ex.D3 which was unregistered partition deed and as such, inadmissible in evidence. Learned counsel for the respondent has argued that the Courts below have rightly dismissed the suit of the plaintiffs as from the statement of the plaintiff-Jai Singh, himself it was evident that the parties were in separate possession in accordance with their shares of the suit property. Ex.D3 was memo of partition and did not require registration. Civil Misc. application No. 1028-C of 1993 filed in this regular RSA No. 1493 of 1988 -4- second appeal (1493 of 1988) was not pressed during the course of the arguments. A perusal of Ex.D3, Panchayat proceedings dated 28.11.1961 reveals that the same is not a partition deed. The said document is in Urdu and its translation in English has been placed on record. As per Ex.D3, a compromise was effected between the parties. From this, it is evident that the parties were already having separate residential houses and they had arrived at a compromise with regard to the residential house of Chander near chaupal which was given to Jai Singh and in lieu thereof, Chander took 14 marlas of land from Jai Singh along with common Gitwar(enclosure). Both the parties had separate residential houses near the chaupal of the village. Both the Courts below have rightly held that the said document did not require registration because it talked about partition which had already taken place between the parties before the document Ex.D3 was scribed. Cross-examination of plaintiff-Jai Singh is also very material. A perusal of the statement of Jai Singh, PW1 reveals that the parties were residing separately in their respective houses. He deposed that they (plaintiffs) were residing in the house in the chaupal. Defendant was residing in the house constructed in the enclosure. As such, the Courts below had rightly dismissed the suit of the plaintiffs as they have failed to establish that the property in dispute was still joint between the parties. No question of law arises in this appeal and the same is hereby dismissed. ( Sabina ) April 25th, 2008 Judge arya