High Court

Legal Reasoning

(1) sa-389-1995IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADSECOND APPEAL NO.389 OF 1995WITHCIVIL APPLICATION NO.5807 OF 19951.Digambar S/o Rajaram UttarwarAge: 75 years, Occu: Agriculture,and business R/o. Osmannagar,2.Vijaykumar S/o Digambar Uttarwar,Age: 35 years, Occu: Agriculture,and business R/o. Osmannagar at present Hadgaon, Tq. Hadgaon,Dist. Nanded...Appellants(Orig. Defendants)VersusVishwanath S/o Digambar Uttarwar,Age: 44 years, Occu: Business and AgricultureR/o. Osmannagar at present atOld Mondha Nanded,Tq. and Dist. Nanded...Respondent(Orig. Plaintiff) …Smt. S. G. Chincholkar h/f Mr. G. M. Chincholkar, Advocate forAppellants.Mr. V. V. Bhavthankar, Advocate for Respondent.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 06th MAY, 2025.JUDGMENT :- 1.The appellants (original defendants) impugn judgment anddecree dated 26.06.1995 passed by 3rd Additional District Judge,Nanded in Regular Civil Appeal No.177/1989, thereby reversingjudgment and decree dated 20.04.1989 passed by Civil JudgeJunior Division, Kandhar in Regular Civil Suit No.113/1987. (2) sa-389-1995(Hereinafter, parties are referred to by their original status for thesake of convenience and brevity).2.The respondent (original plaintiff) instituted Regular CivilSuit No.113/1987 before Civil Judge, Junior Judge, Kandharseeking relief of declaration of ownership and perpetual injunctionagainst appellants/original defendants contending that suitproperties as specified in plaint are ancestral properties of plaintiffand defendants. Those were orally partitioned two years prior toinstitution of suit. The land Gut Nos.978 and 980 and HouseProperty Nos.960 and 209 have been allotted to his share inpartition. Since then, he acquired ownership and possession of suitproperties. The plaintiff further contends that oral partition wasreduced into writing on Stamp Paper on 06.04.1987. However,mutation was not carried in pursuance to oral partition of HinduJoint Family of plaintiff and defendants. The mutation entriescontinued in the name of defendant nos.1 and 2 in respect of suitproperties, therefore, defendants by taking disadvantage ofmutation record, trying to dispossess him. Hence, he filed suit.3.The defendants refuted plaintiff’s claim and denied theoryoral partition. They denied execution of partition deed dated06.04.1987. They raised defence that suit is bad for non-joinder ofnecessary parties, as two brothers of plaintiff, who were alsomembers of joint family and coparcener, were not added in suit. (3) sa-389-1995Similarly, there is no reference of other properties owned by jointfamily.4.The Trial Court framed issues based on pleadings of parties,recorded evidence tendered into service and finally dismissed suitvide judgment and order dated 20.04.1989 holding that plaintifffailed to prove oral partition and allotment of share, so alsopartition deed dated 06.04.1987 is inadmissible for want ofregistration. The Trial Court further concluded that plaintiff failedto prove his exclusive possession in respect of suit properties.5.Aggrieved plaintiff filed Regular Civil Appeal No.177/1989before District Court at Nanded. The learned District Judgereversed decree, thereby accepting case of plaintiff regarding oralpartition and allotment of share. Similarly, recorded findings thatplaintiff proved his exclusive possession and enjoyment of suitproperty and granted decree of declaration of ownership andperpetual injunction in favour of plaintiff.6.Aggrieved defendants filed present Second Appeal, which hasbeen admitted vide order dated 19.09.1997, which reads as under:“Admit, on the grounds (E) and (H). So also the additionalprint which needs decision in the present Appeal is, adocument which is on the record (Exh.67), whether it is adocument executed after the actual partition was effectedand therefore to indicate the shares of the parties thisExh.67 is reduced or, whether till the date of execution ofthat document there was no partition, and, as to whether, (4) sa-389-1995in that case, considered the said document be read inevidence, inspite of the same having been not dulyregistered and properly stamped”7.Grounds Nos.(E) and (H) reads thus :“(E) Whether the unregistered and insufficiently stampedpartition deed dt. 06/04/1987 is admissible to prove thetitle of any of the co-parcerners to the properties mentionedin it.(H) It may be seen that, as per AIR 1968 S.C. Page 1299, inabsence of registration of partition deed, it is inadmissibleto prove title of any coparceners to any property. In suchcircumstances, the Lower Appellate Court was not right inlaw, in holding with the help of unregistered partitiondeed, that the plaintiff proved his case for declaration ofownership and injunction.”8.In light of aforesaid question of law, learned Advocatesappearing for respective parties advanced their submissions.9.Smt. Chincholkar, learned Advocate appearing for appellantsvehemently submits that Trial Court had recorded well reasonedfindings while declining to accept claim of plaintiff as regards tooral partition. She would further submit that partition deed dated06.04.1987 was patently inadmissible in evidence for want ofregistration and stamp duty. The Appellate Court could not haverelied upon same, even for collateral purpose. In support of hercontentions she relies upon judgment of Supreme Court of India in (5) sa-389-1995case of Yellapu Uma Maheswari and another Vs. BuddhaJagadheeswararao and other1.10.Per contra, Mr. Bhavthankar, learned Advocate appearingfor respondent/original plaintiff would submit that Appellate Courtconsidering overall conspectus of matter and referred to partitiondeed dated 06.04.1987, for limited purpose and decreed the suit.According to Mr. Bhavthankar even keeping aside partition deeddated 06.04.1987, plaintiff has brought on record sufficientmaterial to prove oral partition, which has been acted upon byparties. Therefore, he justifies decree passed by Appellate Court.In support of his submissions, he relies upon observations ofSupreme Court of India in case of Subraya M. N. Vs. Vittala M.N. and others2 and Thulasidhara and another Vs.Narayanappa and other3.11.Having considered submissions advanced by learnedAdvocates appearing for respective parties, first and foremostquestion that requires consideration in present Appeal isadmissibility of partition deed dated 06.04.1987 and it’s effect onclaim set out by plaintiff. The plaintiff asserts that documentdated 06.04.1987 is not partition deed and same is memorandum ofpartition, which would not require registration. As such, it could12015 (16) SCC 787.2(2016) 8 SCC 705.3(2019) 6 SCC 409. (6) sa-389-1995be used for collateral purpose in terms of Section 49 of IndianRegistration Act. Even otherwise, same can be used ascorroborative evidence for explaining arrangement madethereunder and conduct of parties. The family settlement wouldoperate as complete estoppel to parties to such settlement, eventhough it has not been registered.12.The defendants, however, refutes contentions of plaintiff onthe ground that document is not only unregistered, but it isunstamped instrument. It can neither be admitted in evidence norhas acceptability for collateral purpose, until same is impounded. Ifplaintiff wanted to rely upon said document, it was open for him toimpound the same with penalty.13.Careful reading of document Exh.67 shows that it is titled asconsent deed. It merely states that panchas mentioned thereinhave been authorized to partition the properties owned byDigambar S/o Rajaram Uttarwar (defendant no.1) amongst hissons. It further records that partition deed prepared by them shallbe binding on all the parties. It bears signatures of defendant no.1-Digambar, plaintiff and his brothers. If aforesaid document isaccepted to be true and correct, theory of plaintiff that there wasoral partition two years prior to institution of suit cannot becountenanced. If there would have been oral partition in the year (7) sa-389-19951985, there was no need to appoint panchas for effecting partitionamongst Digambar and his sons. The document Exh.67 itselfcannot be read as evidence of oral partition as claimed. Therefore,document itself cannot be said to be deed of partition, which issusceptible to registration or payment of stamp duty. Thedefendant no.1 admitted his signature. The plaintiff relied uponsaid document. Therefore, there is no difficulty in admittingaforesaid document in evidence. However, as submitted byplaintiff, this cannot be accepted as evidence of oral partition.14.In addition to aforesaid evidence, plaintiff relied upon hisoral evidence and evidence of two witnesses. The plaintiff hasfurther relied upon documents Exh.65 and 66 i.e. letters addressedby defendant no.1 to plaintiff. The letter dated 01.05.1985 merelyrefers intention of parties to effect partition, whereas another letterExh.66 refers that dispute is settled because of mediation ofpanchas. Careful analysis of aforesaid letters does not put forththeory of oral partition as claimed. The aforesaid documentscannot be read as evidence of oral partition.15.The Trial Court has rightly observed in paragraph no.12 ofjudgment that from contents of said letters inference can be drawnthat in the year 1987 dispute has been settled through Mediatorand plaintiff shall come to Osmannagar for further needful acts.Therefore, theory of oral partition put forth by plaintiff does not get (8) sa-389-1995support. The plaintiff relied upon evidence of NandkumarNagnath, Exh.68, who is scribe of consent deed Exh.67, who statesthat panchas were authorized to effect partition. He does notsupport theory of previous partition.16.Admittedly, there was no mutation in pursuance to allegedoral partition of the year 1985. The suit lands were standing in thename of defendant nos.1 and 2. The plaintiff failed to prove that hewas put in possession of agriculture lands and he was cultivatingthe same through his servant Sambha. Evidence of said Sambha isnot recorded. Another witness Mr. Rajesaheb, alleged tenant inGrampanchayat House No.209 examined to prove that plaintiff isreceiving rent from him and he is in possession of property astenant. However, said witness admitted that he do not knowwhether plaintiff is receiving rent for himself or on behalf of father.17.The Appellate Court gave reference to plaint in Regular CivilSuit No.173/1988 that was instituted by one of brother of plaintiff,who is not party to present suit. Relying upon contents of saidplaint, theory of oral partition is sought to be put forth. However,plaintiff in that suit i.e. Rajesaheb has not stepped into witnessbox. The contents of plaint, which is filed in the year 1988stipulates about oral partition effected 10 years prior to institutionof suit, which relates back to 1978. Therefore, even by acceptingcontents of plaint in Regular Civil Suit No.173/1988, theory of oral (9) sa-389-1995partition in the year 1985 as claimed by plaintiff (two years prior toinstitution of suit) cannot be countenanced.18.In result, this Court holds that plaintiff has miserably failedto prove his ownership and possession over the suit property,particularly on the basis of oral partition. Therefore, findingsrecorded by Appellate Court cannot be countenanced, whereasfindings recorded by Trial Court appears to be in tune with oraland documentary evidence on record. Hence, following order:ORDERa.Second Appeal is allowed.b.The judgment and decree dated 26.06.1995 passed by 3rdAdditional District Judge, Nanded in Regular Civil AppealNo.177/1989 is quashed and set aside and judgment and decreedated 20.04.1989 passed by Civil Judge Junior Division, Kandharin Regular Civil Suit No.113/1987 stands restored.c.In view of observations made in Second Appeal, pending CivilApplication stands disposed of.(S. G. CHAPALGAONKAR)JUDGEDevendra/May-2025