N.N. Sharma, J.
1. This is a defendants' appeal directed against judgment and decree dt. 1-6-1974 recorded by Sri K. C. Asthana, learned Temporary Additional. Civil Judge, Gorakhpur by which he dismissed Civil Appeal No. 219 of 1973 with costs and affirmed the judgment and decree dt. 14-5-1973 recorded by Sri A. H. Ansari, learned IVth Additional Munsif, Gorakhpur in Original Suit No. 1340 of 1968. The suit was decreed with costs by learned trial Court.
2. The dispute relates to plots Nos. 297/2 area 2.47 acres and 298 area 1.28 acres situate in village Koliya Mohal, Mustqil Tappa Rate, Pargana, Bhauwapar, district Gorakhpur.
3. The following pedigree, which was not controverted before me, shall be helpful for appreciating the point involved in this appeal :--
| | | |
Nisar Ali Sajid Ali Azmatali Majid Ali
| Smt. Aminunnisa.
| Ali Haider
| | |
Smt. Habibunisa Riaz Ahmad Nazir Ahmad
(Defdt. 11) (Defdt. No. 10)
4. The plaintiffs, who are own brothers, are transferees of the disputed land from Smt. Aminunnisa, widow of Azmat Ali by virtue of a registered sale deed executed in their favour of 18-1-1958 (Ext. 14).
5. This holding belonged to Ehsan Ali, who was the owner of village Koliya where the plots in suit lie.
6. After the death of Ehsan Ali, his four sons, namely, Nisar Ali, Sajid Ali, Azmat Ali and Majid Ali, became owners of the Khewat and share of each son was 1 anna 7 pies 1 khums. In 1930, Majid Ali transferred his share to Sri Azmat Ali who became owner of the share of Majid Ali also vide sale deed paper 21C. It is a certified copy of a registered document.
7. By virtue of a private partition amongst the three remaining sons of Ehsan Ali, the plots in suit fell in the lot of Azmat Ali vide Ext. 1 dt. 21-10-1931.
8. Thus, after the death of Azmat Ali in 1946, Smt. Aminunnisa remained in sole possession as owner over this khudkasht and after abolition of Zamindari, she became its Bhumidhar. Aminunnisa sold this Bhumidhari to plaintiffs by virtue of a sale deed dt. 18-1-1958.
9. However, on account of the mistake of Lekhpal, the names of other co-sharers also continued in the revenue papers over the plots in dispute. Plaintiffs also sunk a well over plot No. 297/2 in 1967 at their own expenses. It was also averred in the alternative that plaintiffs by virtue of their possession also became Bhumidhars of the land in dispute vide Section 210 of U. P. Zamindari Abolition and Land Reforms Act.
10. The defendants 1 to 8, the co-villagers who were fully conversant with the title and possession of plaintiffs over the property in Mohd. Ashraf (Defdt. No. 10) dispute, procured a sale deed about the disputed property in their favour from defendants 9 to 11 on 27-11-1968 to the extent of l/4th share. A perpetual lease was also procured by these defendants from defendant No. 12 to the extent of 3/16th share in the said property.
11. Thus, the relief sought was for cancellation of the aforesaid sale deed dt. 27-11-1968 and the lease deed dt. 28-11-1968 relating to the land in dispute.
12. Two sets of written statements were filed raising similar pleas. The factum of partition in the family was denied; it was also denied that Majid Ali sold his share by registered sale deed to Azmat Ali. In the alternative, it was pleaded that the aforesaid transactions were fictitious and were not acted upon by the parties themselves nor entries in the revenue records were made according to plaintiffs' case.
13. Sajid Ali sold his share to Mustafa and Kamil. On the death of Mustafa, his 1/8th share was inherited by his daughter Mahbuba and daughter's son Obedulla. Kamil, on the other hand, created a Waqf of this property appointing Obedulla his Mutwalli. Obedulla and Mahbuba were beneficiaries under it. So defendant No. 12 was competent to execute the lease.
14. It was further pleaded that after the death of Majid Ali, his son Rafikul alias Rafiulla became owner and the plaintiffs themselves got a sale deed executed in respect of Rafikul's share on 28-11-1968 even though they alleged that the sale deed was obtained in favour of the mother of plaintiffs. Thus the suit was barred by estoppel and acquiescence.
15. Smt. Aminunnisa was an old and Pardanashin lady and if she made any mention of her possession over the plots in suit in sale deed such mention must have been fraudulently obtained by the plaintiffs. Defendants became Bhumidhars of the land in suit under Section 210 of UPZA and LR Act.
16. It was conceded that the well in plot No. 297/2 was sunk by plaintiffs but it was for the benefit of all the co-sharers and could not make the plaintiffs sole owners of the property in suit. The defendants also claimed the benefit of Section 41 of the T.P. Act.
17. Several other pleas were also raised which are not material to be detailed for the disposal of this appeal.
18. Learned trial Court found that the suit was not bad for multifariousness; the suit was not barred by estoppel; defendants 1 to 8 were not bona fide purchasers for value; impugned documents were not validly executed and they were liable to be cancelled. In the result, the claim was allowed with costs as given above.
19. Aggrieved by that decision, defendants have filed this appeal.
20. Sri Vindeshwari Prasad, learned counsel for the respondents, did not turn up.
21. I have heard Sri Swaraj Prakash, learned Advocate for appellants at length.
22. Obviously, the findings on the point of fact about possession of plaintiffs over the land in dispute are binding on me in second appeal. I can only interfere when any substantial question of law is raised before me.
23. The first legal point which was argued by learned Advocate for appellants was that the certified copy of the sale deed executed by Majid Ali in favour of Azmat Ali was not validly proved nor it has been acted upon nor a presumption under Section 90A of Evidence Act about its execution was available. Learned trial Court erred in admitting the aforesaid document in evidence.
24. In this connection I may simply refer to the finding of the Courts below that the aforesaid sale deed was acted upon. This sale deed was executed by Majid Ali on 2-1-1930 and was registered also. It related to the e ntire share of Majid Ali. It is on record as paper No. 21C.
25. Rafiqulhaq son of Majid Ali or Majid Ali never questioned its execution. Its execution and genuineness was questioned in a suit filed on 16-12-1968. Learned trial Court rightly found that as the executant did not dispute the execution of the document and it was a registered instrument, so it did not need a formal proof as provided by Section 90A of Evidence Act I need not reproduce Section 90A of Evidence Act. The aforesaid provision raises a presumption about the execution of original document by the executant, in cases of such documents or their certified copy when produced from the proper custody after efflux of twenty years; such presumption does not extend to the case of a document which is the basis of the suit.
26. Learned Advocate for appellants argued that this document was the basis of plaintiffs' claim as they produced this piece of evidence in support of their case. I do not subscribe to this view. When such presumption has been raised by the trial Court and the learned lower appellate Court in exercise of their discretion, this Court should not interfere unless it is established that the discretion has been exercised arbitrarily without the consideration of material evidence on record. In the instant case, plaintiffs based their claim on the sale deed executed in their favour by Smt. Aminunissa on 18-1-1958 and in the alternative, they claimed to be bhumidhars under Section 210 of U.P.Z.A. and L.R. Act. They did not base themselves on the sale deed executed by Majid Ali in favour of Azmat Ali. It was a piece of evidence only relied on by plaintiffs to trace out source of title of their predecessor-in-interest. So the aforesaid sale deed could not be regarded as the basis of the suit. It was observed in Deo Chand v. Deputy Director of Consolidation, U. P. Lucknow reported in 1971 All LJ 992 at p. 994 in para 6 :--
'Even assuming that Section 90A is all comprehensive so as to cover even those cases which fall under Section 90, the condition laid down in Sub-section (2) has to be applied to only those documents which are the basis of the suit or of a defence. In the present case the basis of the claim preferred by the petitioner No. 2 was the plot No. 163 of which she asserted herself to be the bhumidhar. In proof of her claim she relied on her possession over the land in dispute as well as the transfer of ownership made to her by the previous owner Srimati Lachaminia under the sale deed dt. 14-10-39. On these facts the sale deed cannot be said to be the basis of the suit but only a piece of the evidence in support of the claim set up by the petitioner No. 2.'
27. I respectfully agree with the said observations.
28. In this view of the matter, the first contention raised by learned Advocate for appellants is repelled.
29. The next legal point relates to Ext. 1 memorandum of partition showing the disputed holding as having fallen in the tot of Syed Azmat Ali. It is dt. 21-10-1931, It bears the signatures of Mustafa Husain, Nazif Ahmad, Syed Reiyaz Ahmad and Kamil Husain and thumb marked by Smt. Aminunnissa. It came from the custody of Ali Haider, son of Smt. Aminunnisa. Ali Haider (P. W. 1) testified about this document and deposed that in a private partition, his mother got the entire property mentioned in the memorandum of partition dt. 21-10-1931. Bhagirathi (D.W. 1) and Ram Kripal (D.W. 2) did not belong to this family. None of the signatories of this memorandum came forward to assail its genuineness or to deny their signatures on it.
30. Learned Advocate for appellants strenuously argued that this document is not properly stamped and has to be ruled out by virtue of Section 17, Clause (1)(b) of Registration Act 16 of 1908 which reads as below : --
'17.(1). The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1964, orthe Indian Registration Act, 1866 (XX of 1866), or the Registration Act, 1871 (VII of 1871) or the Indian Registration Act, 1877 (III of 1877), or this Act came or comes into force, namely :
(b) other non-testamentary instruments, which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one. hundred rupees and upwards, to or in immoveable property;'
31. In this connection, reliance was placed upon Tek Bahadur Bhujil v. Debi Singh Bhujil recorded in : AIR1966SC292 which posited : --
'Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties is be founded. It is generally prepared as a record of what had been agreed upon in order that there are no hazy notions about it in future. It is only when the family arrangement is reduced in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document requires registration, because it is then that it would amount to a document of title declaring for future what rights and in what properties the parties possess. But a document which is no more than a memorandum of what had been agreed to between the parties does not require compulsory registration under Section 17 of the Registration Act.'
It appears that in that case, there was an agreement Ext. 3 which related to the joint property of three brothers and an arrangement was arrived at amongst the parties showing respective lots of the brothers. This document was held to be a memorandum only and did not require registration.
32. In the instant case, as I read Ext. 1, I find that it was simply a memorandum. It reads : --
'Memorandum of Apts of Sir and Khudkastof the holding of the share of Syed Azmat Aliin village Koliya..... Every co-sharer had a right to redeem his share of holding on payment of mortgage amount to the extent of his liability and to resume possession.
33. The test to determine whether the document relating to a partition is a partition deed or merely a memorandum of an oral partition is whether it was intended by the parties that the document was to serve as the depository of the arrangement arrived at by them. If the document was intended to be evidence of the partition effected between the parties thereto, itisa partition and requires registration, vide Bat Kishan v. Saliq Ram, reported in : AIR1946All476 . The mere use of tile word 'Taqsirn Kiya' does not necessarily indicate that the transaction had taken place some time before : Bal Kishan v. Saliq Ram (supra).
34. There is a distinction between a mere recital of a fact and-something which in itself creates a title : Ext. 1 did not create any title in favour of Azmat All but merely recorded in the partition list what had happened and so is not registrable.
35. A similar point came up for consideration in Ramnagina Sah v. Harihar Sah : AIR1966Pat179 which posited :-
'.....A partition of immovable properties between coparceners or co-owners can be made orally and is not required to be in writing; but, if there is instrument effecting a partition of immovable properties, it comes under Section 17(1)(b) of the Registration Act and is compulsorily registrable under that clause. But partition lists merely recording what had already happened are not registrable.'
36-37. In Abdul Haq v. Syd. Mohd. Hashim, reported in ILR : AIR1946All200 ) it was observed :--
'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.
Where the chitthas do not amount toanything more than, mere memorandacontaining the list of the shares which each ofthe parties got at the time of partition, andthey were no doubt signed by the parties inorder to authenticate the lists but they do notin themselves constitute a deed of partition,they do not come within the purview ofSection 17(1)(b). Registration Act and do not requireregistration.'
38. In the instant case, also Ext. 1 is nothing more than a mere memorandum containing the lots of plots which fell in the share of Azmat Ali and so was not registrable.
39. Both the Courts below rightly repelled this contention also of the appellants.
40. It was admitted by the defendants that plaintiffs sunk a well in the disputed holding and Courts below found that they were in exclusive possession throughout this period on the land in dispute in their capacity as Bhumidhars and the documents procured by defendants 1 to 8 were bogus and defendants never remained in possession over the disputed holding and so the aforesaid documents were liable to be cancelled.
41. It is not open to this Court to disturb such finding as it does not raise a substantial question of law.
42. In the result, the appeal dismissed. Costs easy.