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Abdul Haq Vs. Mohd. Hashim and anr. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1946All200
AppellantAbdul Haq
RespondentMohd. Hashim and anr.
Excerpt:
.....through the revenue court the eosbarers in the patti in which plot no. it is, therefore, perfectly clear that if once it is established that by a private partition plot no......and removal of the materials thereof. the plain, tiff claimed to be one of the cosharers in. the plot in question which is situate, in patti ikram ullah in mahal fazila bibi by reason of a deed of exchange dated 6th july 1934 obtained by the plaintiff from one mohammad arkan. the defendants contested the suit on various grounds. their case was that plot no. 146 originally stood in patti abdul ghani (now patti ikram ullah) and that the entire abadi of patti abdul ghani which belonged to abdul ghani was partitioned among his five sons including two named mohammad ghaus and mohammad jan in the year 1905 and that the disputed land was allotted to mohammad ghaus. mohammad jan or his son mohammad arkan had no concern whatsoever with this plot of land. on 20th january 1917 in execution of a.....
Judgment:

Wali Ullah, J.

1. This is a defendant's appeal arising: out of a suit for possession of a house situate on a plot of land No. 146 of the abadi of mauza Chail. The plaintiffs case was that he was one of the zamindara of the plot in suit; that originally the house stood on it and it belonged to. Mt. Latifan and to one Jamal; that these persons abandoned the house and left the village. The house consequently reverted to the zamindars as Chail village is an agricultural village. It was further alleged in the plaint that the defendants' possession over the house after-its purchase from Ali Abbas was illegal and without any right. In the alternative, the relief sought was for possession, over the site of the house after its demolition and removal of the materials thereof. The plain, tiff claimed to be one of the cosharers in. the plot in question which is situate, in patti Ikram Ullah in Mahal Fazila Bibi by reason of a deed of exchange dated 6th July 1934 obtained by the plaintiff from one Mohammad Arkan. The defendants contested the suit on various grounds. Their case was that plot No. 146 originally stood in patti Abdul Ghani (now patti Ikram Ullah) and that the entire abadi of patti Abdul Ghani which belonged to Abdul Ghani was partitioned among his five sons including two named Mohammad Ghaus and Mohammad Jan in the year 1905 and that the disputed land was allotted to Mohammad Ghaus. Mohammad Jan or his son Mohammad Arkan had no concern whatsoever with this plot of land. On 20th January 1917 in execution of a decree against Mohammad Ghaus some property of Mohammad Ghaus, including the disputed abadi plot No. 146, was sold to Mohammad Baqar : vide sale certificate Ex. A dated 12th, December 1918. On the death of Mohammad Baqar his widow Mt. Salamunnissa became owner of the plot in question.

2. On the plot in suit one Jahangir, a Riyaya in the village, had a house. Jhangir died leaving two sons, Roshan and Abdul. Roshan died leaving a son Jamal and Abdul died leaving a son Ali Raza and a daughter Mt. Latifan. Ali Raza also died leaving a daughter Mt. Soghra. The house of Jahangir came to be owned by these three persons, namely, Mt. Latifan, Mt. Soghra and Jamal, and these three persons sold their shares in it to Ali Abbas in the months of April and June 1932. Thus Ali Abbas became owner of the house which stood on the abadi plot No. 146. On 18th November 1936, Ali Abbas sold the house in question to the two defendants Abdul Haq and Sirajul Haq who are own brothers. The defendants thereafter rebuilt the house on this site after obtaining the permission from Mt. Salamunnissa who was the sole zamindar of the site No. 146. In view of these facts, it was contended by the defendants that the plaintiff was not a co-sharer in plot No. 146 as he claimed; that the village Chail was not an agricultural village and there was a custom in the village under which the occupiers of houses in it had a right to transfer their houses along f with their sites; and that the suit was barred by estoppel. The Court of first I instance came to these findings: (1) Mohammad Arkan had no interest in plot No. 146 and he had no right to effect an exchange with the plaintiff. Consequently the plaintiff was not a zamindar in plot No. 146 in Patti Ikram Ullah, (2) That the village was an agricultural one and that there was no customary right in the village under which the occupiers of houses could transfer their houses along with the sites. The defendants by reason of their purchase, therefore, became owners of the materials Only; (3) Lastly, it was held that the plaintiff was estopped from bringing the present suit.

3. In view of these findings the suit was dismissed with costs. On appeal the learned Civil Judge found that the abadi of the village remained joint and that no private partition was established. He further found that the plaintiff on obtaining the transfer from Mohammad Arkan became a cosharer in patti Ikram Ullah and he could consequently maintain the suit. He affirmed the finding of the Court of first instance to the effect that the defendants as transferees of the house in question could not legally remain in possession thereof. The plaintiff's claim was not barred by estoppel. In view of these findings, the appeal was allowed and the suit for possession of the site was decreed and the defendants were directed to remove the materials of the house within six months. The defendants came up in second appeal to this Court. The appeal came on for hearing before a learned single Judge and it was strongly contended before him that the findings of the lower appellate Court both on the question of the private partition of the abadi as well as on the question of plaintiff's right to sue were legally incorrect. It was strongly contended that the partition chitthas which constituted the most valuable documents in proof of private partition had been wrongly excluded as in. admissible by the lower appellate Court. After hearing the matter 'at some length it appears that the learned Judge arrived at the conclusion that the partition chitthas had been wrongly excluded' from the evidence and that the question of the. partition of the abadi as well as the question of plaintiff's title to sue had not been properly tried by the lower appellate Court and he remitted three issues to the dower appellate Court for findings. Parties were given a chance to adduce fresh evidence if they so desired. This was on 23rd September 1941. In pursuance of this order the lower appellate Court submitted its findings on the three issues remitted. Parties filed objections to these findings under Order 41, Rule 26, Civil P.C. When the matter came up finally for disposal before the learned Judge he passed an order on 26th, October 1942; referring the case to a Bench of two Judges.

4. The matter is now before use for final hearing. After the order of remand the lower appellate Court recorded a definite finding that the abadi of patti Abdul Ghani (patti Ikram Ullah) in which plot No. 140 falls was divided among the cosharers in 1905 and various partition chitthas were prepared in respect of the same and that Shikmi plot No. 146 was allotted to the share of Mohammad Ghaus. He also definitely held that this partition had been acted upon by different cosharers in the patti. Curiously enough, however, after recording this finding the learned Judge sent on and recorded another finding on the next issue remitted and it was to the effect that Mohammad Arkan had some sort of a right in the patti as a cosharer and also some right in plot No. 146 'no doubt only shadowy' and he could, therefore, transfer it to the plaintiff by means of a deed of exchange; the plaintiff had accordingly become a cosharer in the patti and thus he had a right to bring the present suit for ejecting the defendants and getting exclusive possession from them. As mentioned above, both the appellants as well as the respondent have filed objections against these findings. Learned Counsel for the appellant has strongly contended that the finding of the lower appellate Court that Mohammad Arkan retained any interest in plot No. 146 Is entirely erroneous and that in any case in view of the definite finding that Plot No. 146 was exclusively allotted to Mohammad Ghaus in the private partition of 1905 Mohammad Arkan could not possibly be deemed to have got any interest left in plot No. 146. Accordingly, it is contended, it follows, that the plaintiff by reason of the exchange of July 1984 could not become a cosharer in this plot. We have heard learned Counsel for the parties on this question and I am quite clear in my own mind that this finding by the learned Civil Judge is entirely erroneous. The learned Judge seems to have been under the impression that inasmuch as the private partition of 1905 was not followed up by any proceedings for effecting a perfect partition through the revenue Court the eosbarers in the patti in which Plot No. 146 is situate would continue to have an interest in this plot jointly with Mohammad Ghaus or his successors-in. interest. This is entirely a wrong conception of the law. Partition once effected either through Court or by private treaty puts an end to the joint ownership of the parties. Thenceforward the parcels of land allotted to different cosharers are absolutely distinct in the eye of law and one has nothing whatsoever to do with the other. A Bench of two learned Judges of this Court in Hawal Rai v. Har Prasad ('24) 11 A.I.R. 1924 All. 57 at p. 636 has observed:

It will hardly be contested that the cosharers in a Mahal have a right to effect a partition by private arrangement amongst themselves, and that it may be the most convenient method of effecting such a partition to assign the entire holding of a particular tenant to a particular group of cosharers. The only difference between a partition effected by private arrangement and one properly carried out under the orders of the Court is that the incidents of the private partition are difficult to prove, and that confusion and litigation may arise afterwards owing to the preparation of village records which are at variance with the actual facts. We cannot, however, in this case allow the clear finding of the lower appellate Court in favour of the plaintiffs on this question of partition to be disregarded.

This ruling has been recently followed on several occasions by Benches of two learned Judges of this Court. It is, therefore, perfectly clear that if once it is established that by a private partition plot No. 146 fell into the aura (or lot) of Mohammad Ghaus there can be no vestige of interest left in this plot so far as the other cosharers are concerned.

5. Reverting to the finding by the learned Judge that the abadi of patti Abdul Ghani was privately partitioned among its cosharers in 1905 as the result of which plot No. 146 fell to the share of Mohammad Ghaus, it appears to me to be obvious that in view of this finding the sole zamindar of plot No. 146 was Mt. Salatnunnissa. The defendants having admittedly reconstructed their house with the permission of Mt. Salamunnissa could certainly maintain it on plot No. 146 and no other cosharer in the patti or in the mahal could possibly have any locus standi to raise any objection to it. Realising this position learned Counsel for the plaintiff-respondent has attacked this finding as one vitiated in law. He has strongly urged that the partition chitthas on which the lower appellate Court appears to have acted in support of its finding were legally inadmissible in evidence. He has invited us to go behind the finding of the learned Single Judge in this Court that these partition chitthas were admissible in evidence and that they had been wrongly excluded by the learned Civil Judge who decided the case in the first instance. We have heard learned Counsel for the parties at length on this aspect of the case. In the first place I do not think that it is open to the learned Counsel for the respondent to reopen this question at this stage, but assuming that he has a right to do so, it is clear to my mind that there is no substance in this contention. He has cited a ruling of a learned Single Judge of this Court reported in Nepal Rai v. Paras Ram Dube : AIR1937All16 in which it has been held:

Whare in a, phatbandi lists are drawn up purporting to show which plots are allotted to each of the parties concerned, and it is a formal document signed by all the parties, and is in substance and intention a document which purports to declare the rights of the parties in the specific plots, the document requires to be registered under Section 17(b), Registration Act, and, being unregistered, it is inadmissible in evidence.

Learned Counsel for the appellant on the other hand has placed his reliance on the following cases:

(1) Uddab Nath v. Gokul Chandra Deb : AIR1936Cal700 , here it was held by a learned Single Judge that 'a butwara chittha is a mere list of the shares which each of the parties has in the property concerned and which is signed by the parties but it is not in itself a deed of partition but is merely a note upon which the parties have to proceed at the partition. As such it docs not require registration for being admissible in evidence.'

(2) Kshetra Mohan Pal v. Tufani Talukdar : AIR1933Cal474 , in which a Bench of two learned Judges has held that 'a mere partition list containing a list of properties is a memorandum and does not require registration. Whether such a document is or is not a deed of partition must be decided on perusal of the document itself.'

(3) Nur Mohammad v. Amir ('36) 23 A.I.R. 1936 Lah. 708 where pending partition proceedings the parties applied to the Revenue Officer reciting terms of a certain compromise and requested him to give effect to those terms, it was held by a learned Single Judge that the application was either one praying that partition might be effected or it was a recital of partition which had already been effected by the parties. The document itself was, therefore, not an instrument of partition and it did not require registration.

(4) Ganapat Das v. Kanthu ('35) 22 A.I.R. 1935 Lah. 448 where two learned Judges of the Lahore High Court laid down the salutary principle that

the question whether a particular document is one falling within the scope of Section 17(1)(b), Registration Act, is one to be decided on a perusal of that document and rulings upon other document not shown to be of an exactly similar character are no guide to a proper decision.

6. Judged in the light of the principles in unciated above, it is quite clear that the question of the admissibility of partition Chitthas must be decided with reference to the contents and nature of the document and the surrounding circumstances in each particular case. The phatbandi which was considered in Nepal Rai v. Paras Ram Dube : AIR1937All16 is reproduced in the judgment of that case. In view of the language used in the phatbandi the learned Judge, who decided that case held that the phatbandi was much more than mere memorandum. It was a formal document and was in substance and intention a document which purported to declare the rights of the parties in the plots in suit. In that view of the matter it was held that the phatbandi required registration. In the present case the partition chitthas are very differently worded and after examining the chitthas with care I feel quite clear in my own mind that they do not amount to anything more than mere memoranda containing the list of the shares which each of the parties got at the time of partition. They were no doubt signed by the parties in order to authenticate the lists but they do not in themselves constitute a deed of partition. They do not, therefore, fall within the purview of Section 17(1)(b), Registration Act, and do not require registration. But if it be assumed for the sake of argument that they are documents which effect a partition and, therefore, fall within the purview of Section 17(1)(b), Registration Act, and are consequently inadmissible for want of registration, it is quite clear that they were used in this case not as documents which themselves effected partition but only to explain the title of Salamunnissa on the one hand and of Mohammad Arkan on the other. In view of the proviso added to Section 49, Registration Act, there can be no doubt whatsoever that these partition chitthas could be used as evidence of a collateral transaction not required to be effected by registered instrument. As long ago as 1919 it was held by their Lordships of the Privy Council in Varada Pillai v. Jeevarathnammal ('19) 6 A.I.R. 1919 P.C. 44 that documents which are not admissible to prove a gift may nevertheless be referred to as explaining the nature and character of the possession thenceforth held by the donee. The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore and Rangoon have acted upon the above mentioned principle and have held in numerous cases that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or a mortgage or a will or lease is nevertheless admissible to prove the character of the possession of the person who holds under it. It is not necessary to refer to all these rulings. Reference might be made only to some recent decisions on this point: Secretary of State v. Debendra Lal Khan , Mt. Shankri v. Milkha Singh ('41) 28 A.I.R. 1941 Lah. 407 and Vishwanath Haibatrao v. Ranganath Dhondo ('42) 29 A.I.R. (1942) Bom. 268.

7. Learned Counsel for the parties have also discussed the question of the admissibility of these partition chitthas with reference to the doctrine of part performance embodied in Section 53A, T.P. Act, read with the proviso to Section 49, Registration Act; but, in view of the above discussion on this question, I do not think it at all necessary to consider this aspect of the question. In the light of the authorities mentioned above, it is quite clear that the partition chitthas were properly taken into consideration by the lower appellate Court in arriving at its finding with regard to the partition effected in 1905. There can, therefore, be no doubt what so ever that that finding is a proper one and must be. accepted in a second appeal. In vi6w of this finding, it is quite clear that the plaintiff has no title or interest in plot No. 146 on which the house of the defendant-appellant stands. Furthermore, it is clear that Mt. Salamunnissa is the sole owner of this plot of land and as she gave permission to the defendants to reconstruct their house there can be no question that the defendants can maintain their house on this plot. I would, therefore, allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs throughout.

Braund J.

I agree and have nothing to add.


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