IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 456 of 1998. Reserved on: 7.4.2009. Decided on: 21.4.2009. __________________________________________________ Smt. Aruna Jain and others. … Appellants. Versus Shri Paul and another. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellants : Mr. G.D. Verma, Sr, Advocate with Mr. Romesh Verma, Adv. For Respondent No.1 : Mr. Ramakant Sharma, Advocate. For Respondent No.2 : Nemo. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Solan in Civil Appeal No. 7-NL/13 of 1997 dated 24.7.1998. Brief facts necessary for adjudication of this regular second appeal are that respondent-plaintiff (hereinafter referred to as the plaintiff for convenience sake) had filed a suit for declaration and, in the alternative, for possession by way of partition of share by metes and bounds. The facts borne out from the pleadings of the parties are that plaintiff-Shri Paul is son of Shri Salag Ram from 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 his first wife-Smt. Laj Wanti. The appellants-defendants (hereinafter referred to as the defendants for convenience sake) are also children born to his third wife Smt. Parkash Wati. Shri Salag Ram died on 1.6.1985. He was owner in possession of the property consisting of residential houses, shop and court-yard etc., as detailed in the plaint. The case set up by the plaintiff further was that his father Shri Salag Ram had contracted marriage with Smt. Parkash Wati during the life time of his earlier wife-Smt. Laj Wanti after coming into force of Hindu Marriage Act, 1955 and Smt. Parkash Wati was not a wedded wife of Shri Salag Ram and resultantly, the defendants No. 1 to 7 are not his legitimate children. In the alternative, the plaintiff has pleaded that in case the defendants are proved to be co-owners, then he was entitled for possession by partition of 1/10th share by metes and bounds. The suit was contested by the defendants. The trial Court dismissed the suit on 30.10.1996. The plaintiff preferred an appeal against the judgment and decree dated 30.10.1996 before the learned District Judge, Solan, camp at Nalagarh. He allowed the appeal on 24.7.1998. This regular second appeal was admitted on the following substantial questions of law: 1. Whether Exhibit DW-2/A showing factum of family partition/settlement between father and son does not require registration? 2. Whether when exhibit DW-2/A and exhibit DA having been received in evidence without any objection, during the course of trial, legal value 3 thereof cannot be assailed and the respondent is estopped? 3. Whether respondent No.2, who was plaintiff No.2 in the suit having conceded defence of appellants, the appeal was not maintainable and respondent No.1 was bound by admission of co-plaintiff in suit? 4. Whether exhibit deed of family partition settlement and notice exhibit DA sent by plaintiff through his counsel to the defendants contained the admissions of the claim of the respondents and these documents have been illegally ignored from consideration? 5. Whether Ld. District Judge has ignored material admissions made by plaintiff as regards to the claim of contesting defendants? 6. Whether exhibit DW-2/A deed of family partition/settlement and notice exhibit DA have been proved on record in accordance with law and respondent cannot be allowed to dispute, validity of which have rightly been received in evidence without any objection? 7. Whether appeal before Ld. District Judge by respondent No.1 was not validly constituted? 8. Whether well reasoned judgment and decree passed by Ld. Sub Judge, Nalagarh has been upset by Ld. District Judge, on sustainable grounds? 9. Whether plea of private partition/settlement in family raised by appellants has duly been established on record on the basis of oral evidence and contrary view taken by Ld. District Judge, is based on conjectures and surmises? 4 Mr. G. D. Verma, Senior Advocate has strenuously argued that the judgment passed by the learned District Judge is not sustainable. He has supported the judgment and decree passed by the learned Sub Judge. Mr. Ramakant Sharma, Advocate has supported the judgment and decree passed by the learned First Appellate Court. I have heard the learned counsel for the parties and perused the record carefully. Since substantial questions of law are inter- connected, they have been taken up together for adjudication to avoid repetition of discussion of evidence and for convenience. The learned Courts below have returned the concurrent findings that Ext. DW-2/A is family arrangement/partition and the same was required to be compulsorily registered under the Registration Act. Ext. DW-2/A was not registered. However, both the learned Courts below have considered Ext. DW-2/A to see the nature of possession on the basis of judgment rendered by the Hon’ble Punjab & Haryana High Court in Rikhi Ram Vs. Sada Ram, 1976 PLR-909. A bare perusal of Ext. DW-2/A shows that the plaintiff was given house/Tabela. The defendants have admitted in their written statement that Shri Salag Ram did not handover the possession of Tabela to the plaintiff. DW-1 Prem Chand defendant has stated that partition deed Ext. DW-2/A dated 23.5.1965 was implemented, however, on the next day, after paying some money to plaintiff took possession of Tabela as owner. DW-2 was the 5 witness of memorandum Ext. DW-2/A. He has not given the description of the property which was given to the plaintiff or which was detained by Salag Ram. He has not deposed that Tabela has been put in possession of the plaintiff. Ext. DA has not been proved in accordance with law. The plaintiff has denied that he has ever issued such notice. The author of the notice, Shri Kashmiri Lal, Advocate was not produced. The notice is dated 30.6.1975. DW-4 Amar Chand, Clerk of Shri Kashmiri Lal, Advocate has only proved the signatures of Shri Kashmiri Lal, Advocate on the notice. Both the Courts below have rightly discarded notice Ext. DA dated 30.6.1975. It is apparent on the basis of evidence led by the parties that Ext. DW-2/A was not acted upon. The possession of Tabela was never handed over to the plaintiff. The plaintiff was entitled to get the property partitioned by metes and bounds. It is settled law by now that partition is compulsorily required to be registered under the Registration Act. In the present case, a bare perusal of Ext. DW-2/A establishes that it was family partition and the same was required to be compulsorily registered. It is true that family arrangement is to be implemented. However, if the same is in the nature of partition, as noticed above, it is required to be compulsorily registered. In the absence of registration, the document is not admissible in evidence. In view of this, the judgments cited by Mr. G.D. Verma are not applicable in the present case. The learned First Appellate Court has rightly appreciated/read Ext. DW-2/A as well as Ext. D.A. 6 Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. April 21, 2009. (cr)