Yogeshwar Dayal, J.
(1) Parties jointly bought two houes. One was in front and the other on the back. Entrance to the back was from the front house. For partition they wrote a deed marked 'A'. A passage for entry to back house was reserved to owner of back house, plaintiff's father. Defendant owned front house who built upper floor and made some construction on partition wall & opened a door & windows towards passage. Plaintiffs claiming that passage was their exclusive property and defendant had no right to raise height of partition wall and open door and windows sued him for injunction. Trial Court framed issues, whether plaintiffs were owners of partition wall, whether they exclusively owned passage and whether they were etitled to injunction. Partition deed 'A' was held inadmissible being unnegistererd. Trial Court partly decreed suit while it was decreed in full in 1st appeal. Defendant filed 2nd appeal. After narrating above facts, para 7 onwards judgment is ;-
(2) The appellants challenged the findings of the courts below on all the issues. Mr. Sehgal, learned counsel for the appellant submitted that (1) there was no legal evidence to prove the exclusive ownership of the passage in dispute as being of the plaintiffs-respondents : (2) that the finding that the house was not constructed till April 1964 is erroneous ; and (3) that the finding that the windows in dispute were constructed on the plaintiffs wall was also erroneous as being based on no evidence.
(3) Various submissions were made by the learned counsel to substantiate his last two submissions. I am afraid the finding as to what time the house was constructed and when the windows were opened and whether they were built in the absence of the plaintiffs are all questions of fact. Again, the finding whether the windows were constructed on the wall built by the plaintiffs on the passage in dispute is a pure question of fact. There is enough evidence to show that the windows were built by the defendant on one of the twparallel walls built by the plaintiffs and it is not a case where the finding can be said to be vitiated being based on no evidence. However, the main submission of Mr. Sehgal is that the finding that the plaintiffs were the exclusive owner of the passage is based on no legal evidence. To substantiate his submission the learned counsel for the appellant submitted that both the courts below have held that the partition deed marked 'A' not being admissible no oral evidence could be led to prove the partition of any part of the property dealt with by the said deed It was submitted that the alleged passage is allotted to the plaintiffs' predecessor-in-interest by virtue of the partition deed marked 'A' by clause (1) of the partition deed and thereforee, in view of sections 91 and 92 of the Evidence Act, no oral evidence could at all be led to prove that the passage in dispute fell to the share of the plaintiffs' predecessor-in-interest, and if it be held that the passage still remains joint property the plaintiffs would not be entitled to the relief of either perpetual injunction or the mandatory injunction prayed for by them.
(4) Mr. Sistani. learned counsel for the respondents submitted that the findings of the courts below that the document marked 'A' was inadmissible in evidence was not correct. Itwas submitted that the said document did not affect any immovable property comprised therein, nor did it purport or operate to create, declare, assign, limit or extinguish any light, title or interest to or in immovable property. It was submitted that document marked 'A' was merely a recital of past transaction namely of oral partition and thereforee neither section 49 of the Registration Act nor sections 91 and 92 of the Evidence Act came into play.
(5) The first question which will thus arise is to determine the nature of the document which is marked as 'A'. It is clear from the averments made by the plaintiffs in paragraphs 2 and 3 of the plaint that they relied on oral partition for allotment of house No. 11096 to the defendant and house No. 11097 to the plaintiffs. It is further clear that the passage in dispute was originally part of house No. 11096. It is further clear from the averments made in paragraph 3 of the plaint that in consideration of the defendant being allotted house No. 11096, i.e the front portion of the house, the defendant according to the plaintiffs shall concede and give up the passage to the plaintiffs' predecessor-in-interest and to perpetuate the division and to demarcate the portions, the partition walls in the form of English letter 'L' had to be built by both the parties. It is further clear from para 3 of the plaint that these terms were incorporated in the partition deed dated 8.9.1960 and it is only since the partition deed dated 8.9.60 that the plaintiffs came to be in exclusive possession and use of their portion including the passage. It was no where mentioned in the plaint that the document marked 'A' was merely a recital of a past transaction namely the oral partition by metes and bounds. (After reproducing statement of plaintiff, judgment proceeds.)
(6) It is in these circumstances that the document marked 'A' came to be written and it is only after document marked 'A' had been written that the plaintiffs' claim to be in exclusive possession and use of their portion including the passage. There is no finding of any of the courts below that first oral partition had taken by metes and bounds moulding. the passage till the document marked 'A' came to be written and signed by both the parties. At this stage it will be convenient to refer to the provisions of the document marked 'A' itself. For the sake of convenience I got the document marked 'A' translated from the Registry and the parties agree that the translation is correct. As translated the operative- part of it reads as under...... 12, An over-all reading of the entire document shows that this document was executed simultaneously with the oral agreement of the terms of partition and the same terms were sought to be put in black and white in the document and the passage in dispute is one of the specific items of property in dispute which, is exclusively sought to be given to the plarnrtiffs respondents by virtue of clause (I) of the document This document itself shows vide clauses (2) and (3) how the passage was to fall in the share of plaintiff's predecessor-in- interest by construction of parallel wall by both the parties. It is thus clear by looking at an the surrounding circumstances including the plaint and the statement of Pw 8, Major' Iqbal Singh intention of the parties substance of the transaction and the document itself that the allotment of the passage in dispute to the chare of the plaintiff's predesessor-in-interest was by virtue of a written document and the document is inadmissible in evidence for want of registration. In fact this document was intended to be an instrument of partition. The partition of immovable property between the co-parteners as understood by Mitakshara law or co-owners is not required by any law to be in writing at all. Partition is a mixture of surrender and conveyance of rights in property; it partly extinguishes right of joint property and partly creates rights to it. In numerous authorities ofthe Supreme Court it has been held that partition as such is not a transfer within the meaning of the Transfer of Property Act and for the purposes of Income-tax Act. However, if an instrument affecting partition is drawn up it certai- dy affects the immovable property and if the immovable property is of the value of more than Rs. 100.00 without registration it is not admissible in evidence so as to affect any immovable property comprised therein or be -received as evidence of any transfer affecting property. Consequently, since the document marked 'A' itself allots passage to the plaintiffs' predeces?or-in-interest and is not a recital of an already completed oral partition with respect to it, it is compulsorily required to be registered and to bear a proper stamp. The document maiked 'A'cannot be called a mere minutes or incidental recital of fait accompli. (S, 49 of Registration & S. 91 and 92 of Evidence Act are then reproduced).
(7) The Exceptions and Explanationns of section 91 and the proviso to section 92 are not relevant for the present purpose and have thereforee not been reproduced above. It is clear from the reading of section 49 of the Registration Act and sections 91 and 92 of the Evidence Act that the document marked 'A' is inadmissible in evidence and again in view of the document marked 'A' no evidence of any oral agreement contradicting, varying, adding or substracting from its terms is admissible and by virtue of section 91 since the terms of disposition of the property or the contract have been reduced to the form of a document, no evidence could be given in proof of the terms of such disposition or contract except the document itself. The courts below after finding that the agreement marked 'A' was inadmissible were in error in deciding issue No. 2. The item of passage is expressly dealt in with the document marked 'A' and no amount of oral evidence could have been led or considered for the purpose of giving a finding of ownership of the passage. This position is clear from citation of various authorities which have been cited at the bar including Ambi and another v. Kelan and others AIR 1937 Mad 843; Kandakuri Papamma v. Kandakuri Narayana & others AIR 1948 Mad 54; and Kanamathareddi Kanna Ready v. Kanamatha Reddy Venkata Ready : AIR1965AP274 Kanamathareddi Kanna Reddy's case (supra) is a Full Bench Judgment which considers the entire case law. It was held :
'IFa document of partition allots specific immovable properties by metes and bounds to v. Iqbal Singh the several sharers, it will be a case of creating or declaring right, title or interest in those specific properties within the meaning of Se. 17(b). and the 'transaction affecting such property' will be the allotment of specific properties and the declaration of separate and exclusive right, title and interest in them in favor of the different sharers. If the document of partition is not registered, Cl. (c) of Sec. 49 prohibits its reception as evidence of that transaction. The unregistered partition deed in the instant case cannot, thereforee, be received as evidence of the separate allotment of and declaration of exclusive right and title to specific items of properties in favor of the plaintiff or the defendant. It is perhaps well to repeat there that the ban of clause (c) of Sec. 49 is against the reception of the unregistered document as evidence. It does not prohibit the reception of any other evidence of the transaction. But section 91 of the Evidence Act steps in here and imposes a prohibition.'
I respectfully agree with this exposition of the law by the Full Bench.
(8) Mr. Sistani, learned counsel for the respondents is right when he urges that the document can be used for collateral purposes as to show that there was partition but since document marked 'A' itself refers to the allotment of passage to the predecessor-in- interest of the plaintiffs and the document being inadmissible no oral evidence can be looked into for deciding about the right of ownership of the passage. it was urged by Mr. Sistani that in view of oral partition certain incidents followed from the conduct of the parties which are not hit by section 91 of the Evidence Act namely, the constructions of double wall. The passage was given by the defendant as he kept the front portion. The appellate court found that in case the passage goes to the defendant his share will become morehan 169 sq. yds. I am afraid I cannot accept this submission. The evidence of construction of double wall is certainly admissible but the further conclusion that the ownership of passage stood transferred to the plaintiffs cannot be arrived at unless oral evidence is looked into and the oral evidence regarding the item of property dealt with in document marked 'A' cannot be looked into. I have thus to hold that in view of the absence of legally admissible evidence, the plaintiff has failed to prove that he is the exclusive owner of the passage in dispute and reverse the finding of the courts below on issue No. 2. In view of my finding on issue No. 2 decision on issue No. 1 is not necessary as the passage has been held not to be in the exclusive ownership of plaintiffs The finding of the lower appellate court while deciding issue No. 3 that the windows and doors in dispute wye construetioned in the absence of Mann Singh or the plaintiffs is a pure finding of fact and cannot be disturbed in the second appeal. But this binding of fact again is of no use in view of my conclusion on issue No. 2.
(9) The result is that these appeals have be allowed and the plaintiff's suit dismissed.