R.S.A. No. 2141 of 1986 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No. 2141 of 1986 Date of Decision: November 28th,2011 Suresh Kumar (died) through L.Rs and another ....Appellants Versus Shiv Kumar (died) through L.Rs. .... Respondent CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. C.S.Rana, Advocate, for the appellants. Mr. S.P.Singh, Advocate, for L.Rs. of the respondent. VIJENDER SINGH MALIK, J. Suresh Kumar and Pritam Chand, defendants in a suit for possession by way of pre-emption of land measuring 15 marlas are before me in this appeal challenging the judgment and decree passed by learned District Judge, Ambala dated 5.6.1986 vide which the appeal preferred by the plaintiff, Shiv Kumar, had been allowed and reversing the judgment of dismissal of the suit passed on 25.3.1985 by learned Senior Sub Judge, Ambala, decreed the suit of Shiv Kumar. The case of Shiv Kumar, the respondent, is as under: The defendants purchased land measuring 15 marlas R.S.A. No. 2141 of 1986 2 .. properly detailed in the head note of the plaint, situated in village Mullana, Tehsil and District Ambala along with the rights appurtenant thereto, from Madan Lal alias Pawan Kumar son of Om Dutt Sharma for a consideration of Rs.8,000/- vide registered sale deed dated 15.04.1981.In the sale deed, the sale consideration was fictitiously got entered as Rs.10,000/-. A sum of Rs 8,000/- was actually the market value of the suit land, which alone was paid as sale consideration. The plaintiff, Shiv Kumar has claimed a superior right to pre-empt the sale on the ground that he is a co-sharer in the suit property and is actually in possession thereof. He has also claimed that the suit property has not been partitioned in any manner. He has further claimed that no notice was given by the vendor or the vendee to the plaintiff before execution of the sale deed. As the defendants did not accept the request of the plaintiff to give the land to him on payment of the price actually paid, this suit was brought by him. The defendants resisted the suit together. They have taken two preliminary objections. According to them, the suit is not maintainable for partial pre-emption. It is also claimed that custom of pre-emption was not prevalent where the property in dispute is situated on the date of extension of Punjab Pre-emption Act, 1913 and accordingly, the suit for preemption does not lie. In reply on merits, the description of the land is denied to be correctly given. The entire land is denied to have been mentioned in the plaint. The R.S.A. No. 2141 of 1986 3 .. sale is denied to have been effected for a consideration of Rs.8,000/-. It is asserted that the land has been sold for Rs.10,000/- out of which Rs.2,000/- had been paid at the time of execution of agreement of sale dated 5.6.1981. The plaintiff is denied to have any right of preemption. It is claimed that the defendants are in actual possession of the property in question. It is claimed that the plaintiff was mediator in the sale of the disputed property and that he is estopped from filing the present suit. Some additional objections have been taken about the expenses incurred by the defendants in the sale as also in levelling of the land. It is claimed that if the plaintiff succeeds in establishing his right of preemption, he may be directed to pay Rs.11592.50 alongwith interest to the defendants. By way of amendment, the defendants added a plea that if the suit property is proved to be initially joint with the vendors, then the same stood partitioned by way of family settlement. According to the defendants, the bara in question was partitioned. It is further averred that the vendors surrendered their share in house in favour of the plaintiff and the vendor was compensated with money amounting to Rs.10,000/- which was paid by the plaintiff to the vendor. It is further averred that western half portion of bara fell to the share of vendors and eastern half portion of bara in question fell to the share of the plaintiff and a memorandum of family partition was executed on 6.4.1980. R.S.A. No. 2141 of 1986 4 .. On the pleadings of the parties, the trial court framed the issues on 15.12.1982 and additional issue No. 8-A on 3.5.1984, which are as under:- 1. Whether the plaintiff has got a superior right to pre-empt the sale in question? OPP 2. Whether the sale price was fixed in good faith or was actually paid? OPD 3. If issue No.2 is not proved what was the market value of the suit land at the time of sale? OP Parties 4. Whether the defendant is entitled to stamp and registration expenses besides sale consideration in the event of the suit of the plaintiff is decreed? OPD 5. Whether the defendant has made any improvement on the suit land, if so to what amount he is entitled? OPD 6. Whether the defendant is entitled to any interest, if so at what rate and to what amount? OPD 7. Whether the plaintiff is estopped by his act and conduct to file the suit? OPD 8. Whether the suit is bad for partial pre-emption? OPD 8-A Whether the land in suit was partitioned by way of a family settlement as alleged in additional pleas No. 5 of the written statement. If so, the terms and effect thereof? OPD 9. Relief. Parties led their respective evidence. Hearing learned counsel representing them, learned trial court accepted the plea of partition of the R.S.A. No. 2141 of 1986 5 .. defendants under issue No. 8-A and finding the plaintiff to have no superior right to pre-empt the land in question, his suit had been dismissed with costs. Aggrieved by the judgment and decree dated 25.3.1985 passed by learned Senior Sub Judge, Ambala, the plaintiff preferred an appeal, which was heard and decided by learned District Judge, Ambala, vide judgment and decree dated 5.6.1986. Learned first appellate court has accepted the appeal and set aside the judgment and decree of learned trial court and decreed the suit of the plaintiff, Shiv Kumar. It is this judgment and decree of learned District Judge, Ambala which has been challenged by way of this Regular Second Appeal. I have heard Mr. C.S.Rana, learned counsel for the appellants and Mr. S.P.Singh, learned counsel for LRs of the respondent. I have gone through the record carefully. Learned counsel for the appellants has submitted that learned first appellate court has erred in not taking the documents, Ex. DW4/A and Ex. D4 as not proved. According to him, learned first appellate court has discarded these documents for want of registration. According to him, these documents make a memorandum of oral family partition and they did not require registration. He has relied upon a decision of this court in Dhan Kaur (Died) through LRs Vs. Shamsher Singh and others 2005 (3) PLR 620, where an oral family partition is held not requiring registration for being admissible in evidence. Reliance has also R.S.A. No. 2141 of 1986 6 .. been placed on a Full Bench decision of Hon`ble Supreme Court of India in Kale and others Vs. Deputy Director of Consolidation and others AIR 1976 SC 807, where again it is laid down that the family arrangement may even be oral in which case no registration is necessary. It is further laid down that registration would be necessary only if the terms of family arrangement are reduced into writing. A distinction is also drawn between a document containing the terms and recitals of a family arrangement made under the document itself or memorandum prepared after the family arrangement had already been made either for the purpose of record or for information of the court for making necessary mutation. It is held that in the latter case, the memorandum itself does not create or extinguish any rights in immovable properties and, therefore, does not fall within the mischief of section 17(2) of the Registration Act. Learned counsel for the appellants has further submitted that learned first appellate court has given no reason for discarding the aforesaid documents. According to him, it is observed by learned first appellate court that the documents were not reported to the revenue authorities as was required under section 123 of the Punjab Land Revenue Act, and, therefore, documents cannot be taken to have severed the status of the parties to the joint land. According to him, the documents, therefore, clearly prove that the parties have, by way of oral family arrangement, partitioned the R.S.A. No. 2141 of 1986 7 .. land in question and on the date of sale, the land in question was not joint property and the plaintiff was not a co-sharer therein. Learned counsel for the appellant drew my attention to the statement of Shiv Kumar, plaintiff recorded as PW1 in the case, where he has admitted that Madan Lal and other co-sharers have entered into partition of the properties by way of mutual consent and that land in question fell to the share of Madan Lal. According to him, learned first appellate court has ignored this admission of the plaintiff and has held the land in question to be joint property in which the plaintiff is held as one of the co-sharers having a superior right to pre-empt the same. According to him, there could be no ground for rejecting this admission of the plaintiff which clinches the issue. He has, therefore, prayed for accepting the appeal and setting aside the judgment and decree under appeal and, consequently, dismissing the suit of the respondent-plaintiff. Learned counsel for the respondent has submitted that the alleged partition deed has been rejected by learned first appellate court on two grounds, namely, non registration of the same and non reporting of the partition to the revenue authorities. He has further submitted that Ex.DW 4/A is not even signed by the plaintiff. According to him, Ex.DW 4/A is extract of the register of the deed writer, which is not even primary evidence of the transaction. He has submitted that no permission had been obtained to lead secondary evidence regarding the contents of this R.S.A. No. 2141 of 1986 8 .. document. He has further claimed that though, an application was moved for obtaining permission to lead secondary evidence regarding contents of the same, yet the same was not pressed and was dismissed by learned trial court vide order dated 31.1.1984. According to him, the application which was not pressed on 31.1.1984 and was dismissed as such, was for production of the original document or in the alternative for permission to lead secondary evidence. He has submitted that after getting the said application dismissed, this document remained indmissible in evidence. Learned counsel for the respondent has further submitted that even if the contents of Ex.DW 4/A are taken into consideration, the same does not speak of partition of the suit property, which is agricultural land. According to him, Ex. DW 4/A relates to a house and a bara and not to the suit property. To prove that the land in question is agricultural land and is not the subject matter of Ex. DW 4/A, learned counsel for the respondent drew my attention to the statement of Ram Chander (DW-2), who has admitted that in the suit property, there is fodder crop standing at the spot. Learned counsel for the respondent then drew my attention to Ex. D4, a photocopy of a document dated 1.5.1984 whereby Shiv Kumar mentions to have not signed the original document Ex. DW 4/A which is claimed vide Ex. D4 to have been signed by him on the day of execution of Ex.D4. He has submitted that the admission of R.S.A. No. 2141 of 1986 9 .. Shiv Kumar, which is referred to by learned counsel for the appellants, would not go to prove partition of the property, which is the subject matter of the document. According to him, this document does not relate to the suit land and, therefore, the admission would also not cover the land in question. Ex. DW 4/A is an extract of the register of deed writer who had scribed the document which is claimed as agreement. Vide it, a house and bara have been partitioned. After receiving the price of the share of other co-sharers, the house fell to the share of Shiv Kumar. However, the bara was partitioned between Madan Lal and Jai Bhagwan on one side and Shiv Kumar on the other side. The question is as to whether this document relates to the land in question. The land in question is admitted by Ram Chander (DW- 2), a witness of the defendants-appellants to have fodder crop in the same on the day, he appeared in the witness box. Madan Lal , defendant (DW-3) has stated that the land, house and bara were joint properties with Shiv Kumar. His statement shows that there were three properties and there was land apart from a house and a bara. Ex. DW 4/A relates to the house and the bara and, therefore, it clearly shows that it does not relate to the land. The admission of Shiv Kumar, respondent is not clear and so cannot be relied upon because of the terms of the document Ex. DW 4/A and other evidence. He has just admitted that a partition had been effected between Madan Lal and other co-sharers. In the next sentence, he R.S.A. No. 2141 of 1986 10 .. has denied the land in question to have been partitioned. Therefore, the statement of Shiv Kumar cannot override the other evidence and prove that the pre-emptor was left with no right of pre-emption in the suit land. The contents of Ex. DW 4/A clearly show that the transaction recorded in the agreement was effected on the date of agreement, i.e., 6.4.1980. It is not the record of any past transaction which would not require registration as per the ratio of Kale and other's case (supra). When the partition has been effected by way of document dated 6.4.1980, the document required registration and in the absence of the same, learned first appellate court has rightly rejected the same as inadmissible in evidence. The partition of agricultural land, as the suit land has been, though not a subject matter of Ex. DW 4/A required to be reported to the revenue authorities for severing the status of jointness. It is so held in various cases reported as Dhoom Singh and anr. vs. Ram Kumar and anr. 1988 PLJ 72, Chander Shekhar and ors. Vs. Des Raj and ors. 1989 (2) PLR 393 and Harbans Lal Vs. Gurdev Singh, 2010 (2) RCR (Civil) 769. So, the documents, Ex. DW 4/A and Ex. D4 were rightly found not admissible in evidence and the suit property is rightly held to have not been partitioned between the co-sharers. As I have already observed, the statement of Shiv Kumar does not provide the R.S.A. No. 2141 of 1986 11 .. requisite admission on the strength of which, ignoring all the other evidence, it could be held that the suit property stood partitioned between the co-sharers. For the aforesaid reasons, I fail to find fault with the decision of learned first appellate court, rendered vide judgment and decree dated 5.6.1986. Consequently, the appeal fails and is dismissed with costs. (VIJENDER SINGH MALIK) JUDGE November 28th, 2011 som