IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.239/1998 Reserved on:26.5.2009 Decided on:5.6. 2009 Sh. Vidya Nand and others. …Appellants. Versus Smt. Durma Devi and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.No. For the appellants : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. For the Respondents : Mr. D.N. Ronta, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 26.2.1998 passed by the learned Additional District Judge, Shimla in civil appeal No. 255-S/13 of 1987. Brief facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of the respondent-plaintiff Smt. Sonlu (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit in the Court of Sub Judge, Theog for declaration with respect to the suit land comprised in Khata Khatauni No. 58/100, kitas 3, measuring 9 bighas 7 biswas in Chak Rajtari and the land comprised in Khata Khatauni 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 No. 4/4, kitas 28, measuring 25 bighas 13 biswas in Chak Garog, Pargana Ubadesh,Tehsil Kotkhai. She claimed herself to be owner in possession as co-sharer of this land to the extent of 1/4th share. Defendants No.1, 3 and 4 filed separate written statement. They alleged that the plaintiff was not entitled to the suit land to the extent of 1/4th share and that the revenue entries showing her owner in possession of 1/4th share were wrong and contrary to the facts. Defendant No.2 Sh. Mast Ram has supported the case of the plaintiff. The learned Sub Judge dismissed the suit on 30.6.1987. The plaintiff preferred an appeal before the learned Additional District Judge, Shimla. The same was allowed on 26.2.1998. This Regular Second Appeal has been filed against the judgment and decree dated 26.2.1998 by the appellants-defendants Shama Nand, Vidya Nand and Daya Nand (hereinafter referred to as ‘the defendants’ for convenience sake). The same was admitted on the following substantial questions of law: 1. “Whether under the Hindu Law the father has an absolute right to carry out partition between his sons and daughters do not have a right in the property of the father? 2. Whether the family settlement DW-1/A was legal and valid and divided joint Hindu Family of Jalu? 3. Whether the factum of the separate living of the parties after the private partition and settlement DW-1/A and the evidence on record, the defendants were in adverse possession of the property and the court below erred in not correctly deciding the said question? 4. Whether the presumption of truth attached to the revenue entries/record was rebutted in the facts and circumstances of the case and the private partition stood proved and acted upon and the court below has mis-construed the oral and documentary evidence and raised wrong inferences from the facts proved on the record? 3 Mr. Rajnish K. Lal, Advocate has supported the judgment and decree passed by the trial court. He then argued that the defendants were living separately after the private partition effected in the year 1962. He further argued that the private partition stood proved and the same was acted upon. He has relied upon the settlement Ex.DW-1/A. Mr. D.N. Ronta, Advocate has supported the judgment and decree dated 26.2.1998 passed by the learned first appellate court. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. The plaintiff has appeared as PW-1. She has placed on record documents Ex.P-1 to P-5. The defendants have examined seven witnesses and in support of their case they have placed on record documents Ex.DW-1/A, Ex.DW-1/E, Ex.DW-6/A and Ex.DW-6/B. They have also placed on record Ex. D-1 and Ex. DW-2. Ex.DW-1/A is the Tehrir regarding the partition of the suit land between Shama Nand and Mast Ram and their deceased father Sh. Jalu dated 26.3.1962. Ex. DW- 1/B and Ex.DW-1/C are the copies of jamabandis of the suit land situated in Chak Garog and Rajtari. Ex.DW-1/D is the copy of jamabandi for the year 1979-80. Ex.DW-1/E is the certified copy of statement of Sh. Mast Ram dated 12.5.1975. Ex. DW-6/A and Ex.DW-6/B is the average five years cost and collection with respect to the suit land of Chak Rajtari and Garog. Ex.D-1 is the will executed by Smt. Motu deceased in favour of defendants No.3 and 4 with respect to the land of Chak Garog fallen to her share through her husband deceased Jalu. Ex.DW-2 is the Missal 4 Haquiat for the year 1925-26 with respect to the suit land of Chak Rajtari and Garog. Mr. Rajnish K. Lal, Advocate has strenuously argued that the private partition was effected vide Ex.DW-1/A. However, this document was not given any effect and revenue entries were not changed. Defendant No.1 has deposed that he had gone to the Patwari alongwith the deed of partition for giving the effect to the same in the revenue record. This version cannot be believed. In case he had approached the Patwari, the entry was required to be made in the Rojnamcha. In fact, the suit land has been mutated in the name of the plaintiff, her mother Smt. Motu, defendants No.1 and 2 as per mutation No.523, which was attested on 8.6.1970. These entries were further reflected in column 12 of the Jamabandi for the year 1963-64, Ex.DW-1/B and Ex.DW-1/C. A bare perusal of Ex.DW-1/A reveals that the property was divided between defendants No.1 and 2 by their father Sh. Jalu. The document was required to be registered under section 17 of the Registration Act. The document cannot be read in evidence in the absence of its registration under the Registration Act (Act No. 16 of 1908). Mr. Rajnish K. Lal has also argued that the plaintiff has failed to prove her possession since she was married and was living in her in-laws house. This contention cannot be believed for the simple reason that the possession of one co-sharer is always on behalf of all the co-sharers. Every co-sharer has interest in the joint-property and also in every parcel of it and possession of the joint property by one co-sharer is possession of all even if by one and others are out of actual possession. The plaintiff thus could not be ousted from the joint property. Mr. Rajnish K.Lal has also argued that the suit in the present form is not maintainable. The plaintiff in the present case has sought 5 declaration in her favour declaring her as owner in possession as a co- sharer with defendants No.1 to 4. Defendants No.3 and 4 have also inherited the property on the basis of will Ex.D-1. The mutation of land was attested vide Ex. D-4 in their favour. DW-2 has also moved application before the Assistant Collector IInd Grade, Kotkhai for partition of the suit land. If the partition had already taken place as pleaded by defendant No.1, there was no occasion to move fresh application. It is not discernible from the statement Ex.DW-1/E recorded by the Assistant Collector 2nd Grade on 12.5.1975 that in what proceedings the statement was recorded. Sh. Jalu was the co-owner as per Ex.DW-2. The same position is reflected in Ex.DW-1/B and DW-1/C. This property was inherited by the plaintiff, defendants No.1, 2 and Smt. Motu as per entries mentioned in Ex.DW-1/B and Ex.DW-1/D, jamabandis for the year 1979- 80 and 1980-81 (Ex.P-1) as well. In these circumstances, the plaintiff is justified in claiming herself to be owner in respect of the suit land to the extent of 1/4th share. The learned first appellate court has correctly appreciated the entire ocular as well as documentary evidence while reversing the findings recorded by the trial court. Consequently, in view of the aforesaid reasoning, there is no merit in this Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 5.6.2009 (Rajiv Sharma ), J. *awasthi*