1. The present appeal is against the decision of the learned Single Judge of this Court confirming the order of the Arbitrator, Hirakud Land Orgarisation, Sambalpur, rejecting the objection of the appellant in a land acquisition proceeding.
2. The Respondent and the Appellant are two brothers, the former being the elder. They had about 10 acres of land in village Dhulunda in Sambalpur district. It was admittedly their ancestral joint family property. While they were in joint family status, some years prior to 1936 the appellant shifted to a village named Chalta under Surguja zamindary in Madhya Pradesh, where he had been married. After the appellant's shifting to Chalta, the respondent alone continued to be in possession and enjoyment of the joint family properties at Dhulunda.
According to respondent's case, in 1936 partition took place between the two brothers, and in the said partition the lands at Dhulunda were allotted to the respondent and the lands at Chalta were allotted to the appellant. The respondent remained in sole possession of the Dhulunda land. Meanwhile 1.81 acres of land in Dhulunda village was acquired by the State Government under the Hirakud Scheme, over which a sum of Rs. 564/-was payable as compensation. The appellant filed an objection claiming 8 annas share in this compensation money. His case was that while the lands at Dhulunda were the joint family properties of the parties, the lands of Chalta were his self-acquisitions, and that there was no partition and allotment as alleged by the respondent, in 1936. An unregistered document Ext. A was relied on by the respondent in support of the said partition and allotment, The appellant's case was that he had not executed the said document.
3. Though the respondent's case was that partition took place in 1936, in the evidence stage attempt was made by the respondent to establish, that the partition and allotment had taken place earlier, and that Ext. A was executed in 1936 in recognition of the same. The learned Arbitrator held Ext. A to be genuine. He was of the view that the Chalta lands were not the joint family properties, and that there was no prior partition. According to the learned Arbitrator's finding, the appellant left this place (Dhulunda) and tried his luck at Chalta where his father-in-law was living. He cultivated his father-in-law's lands and then got a gift of 10 acres from him and got a Parcha in his name for the lands. So he felt that he is now well settled and in a more secure position there. So he has executed Ext. A in April 1936 stating that he would not have any claim in Dhulunda lands and that Khyama (respondent) should not claim a share in, Chalta lands. In this way, Khyama was in sole possession and enjoyment of the lands in Dhulunda to the exclusion of Gerua (appellant). According to the learned Arbitrator's finding, the appellant abandoned his right to the Dhulunda lands under Ext. A. The learned Arbitrator considered the question of non-registration of Ext. A and was of the view that though by itself it could not effect an extinction of the appellant's claim, it could be used for the collateral purpose under Section 49 of the Registration Act
'to prove separate possession, separate dealings and enjoyment of the properties'.
Though not so categorically stated, the learned arbitrator appears to have upheld the sole title of the respondent to the Dhulunda lands on the basis of adverse possession from 1936.
4. The Court of appeal observed,
'There was an arrangement prior to the Ek-rarnama executed in 1936 under which the parties came to be in possession o their respective lands. Thus, it is not that the document itself created the title, but long prior to the document, under certain arrangement, the two brothers came to be in possession of the lands. In other words, there was a sort of partition between the two brothers, the opposite party remaining in possession of the Dhulunda lands and the objector in respect of the Chalta lands, since he had left his home and lived at his father-in-law's place. Considering the evidence, read as a whole, it is not quite clear as to at what point of time the alleged partition took place by reference to Ext. A. .........It is clear that the two brothers were in possession of their respective lands under an arrangement as aforesaid. .......Ext. A Kararnama, though not registered, may be used for the collateral purpose of ascertaining under what circumstances the two brothers came to be in possession of their respective lands ....... Apart from Ext. A, the oral evidence supports the case of the arrangement between the two brothers'.
5. Before proceeding further, it is necessary at this stage to refer to the terms of Ext. A, which has been written by the appellant in the shape of it Kararnama. Ext. A recites,
'Kshyama Biswal (respondent) would get whatever lands, moveables and immovables I have at Dhulunda and he would not get anything of whatever lands, moveables or immovables existing at Chalta and Surguja. I have no right to the Dhulunda lands and properties. So I write this document for any future use. If in Surguja the Zamindar takes away the tenant's land I would be able to get half the lands at Dhulunda and pay half the debt'.
The terms of this document clearly imply that there had been no prior arrangement between the parties, under which the appellant had previously lost his right to the Dhulunda properties, and it is under this document only that he gave up his claim to the Dhulunda properties, and the respondent gave up his claim to the Chalta properties. This document further implies that at Chalta by the time of that document there were some lands, in which the respondent had also some interest. So, Ext. A goes against the learned Arbitrator's finding that the two brothers had no joint family lands at Chalta by 1936, and also against the Court of Appeal's finding that there had been a previous partition or arrangement prior to execution of Ext. A, under which the brothers stayed at those respective places as exclusive owners.
In his pleading dated 6-7-59, the respondent stated that
'the parties are separate in mess and are partitioned since about 23 years'.
In his evidence (recorded on 13-8-59) he stated
'About 23 or 24 years ago my brother and myself have partitioned all our properties in the presence of Gountia and Pradhan. There was a writing at the time to the effect that I was allotted the properties in Dhulunda and my brother was allotted those at Chalta in Surguja estate. Gerua (appellant) executed a deed in my favour and I executed one in his favour ..... At the time of this partition, no moveables, cash or gold or utensils were divided. The two papers were executed and thus the division was completed''.
Thus the respondent clear case in the pleading and the evidence was that the partition was effected by the execution of Ext. A by the appellant and a counter document by him, and there was no actual physical partition of movables or immovables otherwise made. So, in view of Ext. A and the aforesaid pleading and evidence, there was no prior partition or arrangement between the parties, and it is through execution of Ext. A that the partition or arrangement was sought to be effected.
6. No document is necessary to effect partition and division of properties amongst joint owners. Division may be made orally and a subsequent document might be made recording the fact of such division. In such a case, even if the document of partition is hit for non-registration, independent oral evidence may be given of theactual division (vide Girija Nandan v. Girdhari Singh, AIR 1951 Pat 277 and Ram Rattan v. Parma Nand, AIR 1946 PC 51). But, in the present case, there was no other independent division made between the brothers of any movables or immovables, and it was under Ex. A and a counter document that each brother gave up his claim in respect of movables and immovables of the other existing in one village or the other. The oral evidence of partition being to the self-same effect it is hit by Section 91 of the Evidence Act, and cannot prove the terms of the partition when the document itself is inadmissible for non-registration. Both the learned Arbitrator and the Court of appeal have held Ext. A as hit by Sections 17 and 49 of the Registration Act; but according to their view it could be used for collateral purpose of proving the nature of the respondent's possession over the Dhulunda lands since after Ext, A. The Court of appeal for this purpose has relied on AIR 1951 Pat 277 and Abdul Haq v. Mohd. Hashim, AIR 1946 All 200.
The Patna decision lays down:
'An unregistered deed of partition and deeds purporting to be sale-deeds between various parties to the partition though not admissible to prove partition, can be referred to under Section 49, Registration Act, 1908, for the purpose of showing that the parties were dealing with properties in their separate possession on the footing that there had been a partition.'
The Allahabad decision lays down:
'A document effecting a partition which is inadmissible in evidence for want of registration can in view of the proviso to Section 49 be used as evidence of a collateral transaction not required to be effected by registered instrument. It can, therefore, be referred to for the purpose of explaining the nature and character of the possession thenceforth held by the parties under it.'
Both the aforesaid decisions rely on Varada Pillai v. Jeevarathnammal, AIR 1919 PC 44. All the three aforesaid decisions refer to cases wherein there was change of possession as the effect of an unregistered document which was compulsorily registrable. But here was a case in which the respondent was in sole physical possession of the Dhulunda lands long prior to 1936 when the appellant had shifted to Chalta, though such physical possession of the respondent was constructive possession on behalf of the whole joint family including the appellant. On execution of Ext. A, the respondent continued to remain in sole possession as before, and there was no case of any formal delivery of possession under Ext. A or any actual delivery of possession in his favour in pursuance of the settlement under Ext. A. In other words, the respondent was in sole physical possession previously prior to Ext. A and he continued in sole physical possession subsequent to it. In such a circumstance if Ext. A Be admissible under Section 49 of the Registration Act to understand the nature of his possession, then virtually Ext. A would be used for the very purpose for which it is prohibited to be used under Section 49.
Section 49 stipulates that the unregistered document shall not affect any immovable property or be received as evidence of any transaction affecting such immoveable property. If Ext. A is used for the so-called collateral purpose that the sole possession of the respondent was due to the allotment made in Ext. A, then the fact of allotment is virtually accepted, though under Section 49, Ext, A ought not to be received as evidence of any transaction affecting the property. In the present case, the so-called collateral purpose for using Ext. A is nothing but a part and parcel of the main purpose for which it was executed. In this connection, I will refer to a decision of their Lordships of the Supreme Court reported in Mt. Kirpal Kuar v. Bachan Singh, AIR 1958 SC 199. The case was one, in which a party was in adverse possession of a property for some time. While she was so in possession, there was a document executed between her and the other party, under which she was to continue in possession in terms of the agreement and under the terms of the agreement her possession would be permissible. The agreement was hit for non-registration. An argument was advanced before their Lordships that the agreement could be used for the collateral purpose of establishing the permissive character of her possession and determining her previous adverse possession. Their Lordships observed,
'The High Court has held that the agreement was admissible to prove the nature of her possession. In AIR 1919 PC 44 it was held that a document which should have been registered but was not, was admissible to explain the nature of possession of a person. What had happened there was that two widows who were in possession of a property in equal shares, presented a petition to the Collector on 10-10-1895, whereby after reciting that they had on 8-10-1895 given away the property as Stridhan to one Duraisani, they prayed that orders might be passed for transferring the villages into her name. On this petition the property was registered in the name of Duraisani and she was put in possession and thereafter continued in possession till her death in 1911. The question was whether Duraisani had acquired title to the property by adverse possession. It was held that though the petition in the absence of registration could not be admitted to prove a gift, it might be referred to for showing that the subsequent possession of Duraisani was as a donee and owner of the land and not as trustee or manager for the two donors, and therefore to show that the nature of such possession was adverse to them. We cannot agree that on the authority of Varada Pillai's case the agreement of 6-2-1932, can be admitted in evidence in the case in hand to show the nature of Harnam Kaur's possession of the lands subsequent to its date. In Varada Pillai's case, Duraisani had got into possession only after the petition and claimed to retain possession only under the gift mentioned in it. The petition was therefore admissible in evidence to show the nature of Her possession. In the present case Harnam Kuar had been in possession before the date of the document and to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into a permissive possession and, therefore, to give effect to the agreement contained in it which admittedly cannot be done for want of registration. To admit it in evidence for the purpose sought would really amount to getting round the statutory bar imposed by Section 49 of the Registration Act.''
In the present case, under Ext A there was severance of joint family status between the parties, and that might be a collateral purpose for which it may be used if necessary. Regarding abandonment of each brother's right in the respective villages, Or in other words allotment of the properties in division, the same cannot be inferred either directly or indirectly, since that is the main purpose for which registration was compulsory. By severance of joint family status, the two brothers came to be joint tenants in respect of their landed properties and the possession by one of them could not be adverse to the other, unless there was any evidence claiming exclusive possession or ouster. In the present case, there is no evidence of any such ouster or any overt act on the side of the respondent as claiming to be the sole owner of the Dhulunda lands to the exclusion of the appellant. While the original record-of-right continued to be joint, no mutation was applied for by the respondent, and there is no other act done by him subsequent to the execution of Ext, A to indicate that he was claiming the right over the Dhulunda lands to the exclusion of the appellant Admittedly, he was paying rent for the lands before Ext. A and he continued to pay the same after Ext. A, and so this payment of rent by itself could give no indication of any ouster. Thus, there was no adverse possession established by the respondent as against the appellant. In the circumstances, the respondent did not, by any method, acquire sole title over the Dhulunda lands determining the title of the appellant.
7. In the result, the appeal is allowed with costs before the Arbitrator and the Court of Appeal nO costs of this appeal since the respondent has not contested. The appellant is to get 8 annas share from the compensation money.
G.C. Das, J.
8. I agree.