RSA No. 2635 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2635 of 1986 Date of decision: August 2, 2011 Sarwan Singh ...Appellant Versus Saudagar Singh ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. RS Bains, Advocate, for the appellant. Mr. KS Dhanora, Advocate, for the respondent. GURDEV SINGH, J. (Oral) This second appeal has been preferred by the appellant/defendant, Sarwan Singh, against the judgment and decree dated 29.5.1986 passed by the Additional District Judge, Ludhiana, vide which he dismissed the first appeal preferred by him against the judgment and decree dated 19.5.1984 passed by the Sub Judge Ist Class, Jagraon, decreeing the suit of the respondent/plaintiff—Saudagar Singh, for separate possession by way of partition of the properties situated in village Barhmi, Tehsil Jagraon, District Patiala, detailed in the heading and para No.1 of the plaint. The plaintiff pleaded in his plaint that Sarwan Singh-defendant is his brother and both of them jointly owned the properties in dispute. He is in possession of the houses shown as marked A and B and the defendant is in possession of the houses marked as C and D in the site plan annexed RSA No. 2635 of 1986 2 with the plaint. There remains constant dispute between them due to jointness of the properties. He requested the defendant to effect partition but he refused. Therefore, he filed the suit for separate possession by way of partition. The suit was contested by the defendant. In his written statement, he admitted that the properties in dispute were their joint properties. He denied the other contentions made in the plaint and, inter- alia, pleaded that partition had already taken place between them in the presence of the Panchayat, in which he was given Khasra Nos. 520/2 and 528 alongwith a passage of width of two karams. Partition deed was executed at that time and in view of that partition, the plaintiff has no locus standi to file the suit and he is estopped from filing the same by his own act and conduct. On the pleading of the parties, the following issues were framed by the trial court:- 1. Whether the plaintiff has no locus standi to file the suit ? OPD 2. Whether the plaintiff is estopped by his act and conduct from filing the suit ? OPD 3. Whether the suit property has already been partitioned by the co-sharers ? OPD 4. Relief. As the onus for proving all the issues was placed on the defendant, so he was called upon to produce his evidence in the first instance. He examined himself as DW-1, Gulzar Singh (DW-2), Bant Singh (DW-3) and Ajaib Singh (DW-4). To rebut that evidence, the RSA No. 2635 of 1986 3 plaintiff examined himself as PW-1. After going through that evidence and hearing learned counsel for both the sides, all the issues were decided in favour of the plaintiff and resultantly, the suit was decreed and a preliminary decree was passed in his favour. That preliminary decree was challenged by the defendant by way of first appeal but the same was dismissed. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the defendant that the courts below committed an illegality, while holding the document Ex. D.1 to be a partition deed and not relying upon the same as having been written on unstamped paper and being unregistered document. In fact, this document is only a memorandum of partition as the parties had already agreed to partition their joint properties before the Panchayat, which was collected on 6.4.1975. Only minor changes were made in the decision, which was so taken before the Panchayat and, as such, this document is only a memorandum of partition, which was effected on 6.4.1975. Thus, according to him, the following substantial question of law arises in the present appeal:- “Whether the document Ex. D.1 is a memorandum of partition and the findings recorded by the courts below are liable to be set aside ? On the other hand, the learned counsel for the plaintiff contended that the document Ex. D.1 is a partition deed, as the partition was by means of that deed itself and correct finding to that effect was recorded by the courts below. I have gone through the contents of the document Ex. D.1 with RSA No. 2635 of 1986 4 the help of counsel for the parties. A bare reading thereof makes it clear that the partition was effected by means of this writing and it is not a memorandum of partition which had already taken place between the parties. Correct finding to that effect was recorded by both the courts below. This document was rightly excluded from the consideration, as it was not executed on a stamp paper and was not got registered, as required by Section 17 of the Registration Act. Once the terms of any such partition of the property are reduced into writing then no amount of oral evidence can be looked into regarding that partition, except the partition deed itself. If this document is excluded from the consideration, it cannot be held that the joint properties have already been partitioned between the parties. Therefore, the above said question of law is liable to be decided against the defendant. There is no merit in this appeal and the same is hereby dismissed. August 2, 2011 (GURDEV SINGH ) prem JUDGE