Sheo Dayal vs Budha and another

Nigam, J.C.

Sheo Dayal filed Civil Suit No. 2 of 1946 in the Court of the Sub-Judge. 1st Class, Ajmer, against Budha and Ganeshilal claiming partition by metes and bounds of the properties to the schedule annexed to the plaint. The properties mentioned in the schedule consist of three houses and two tenancy holdings making in all about 21 bighas. The suit was contested. It was pleaded that there had been a prior partition in the year 1898 which was evidenced by an unregistered document Ex. A. The learned Additional Sub-Judge granted a decree for partition of the properties fixing the share of each party as 1/3rd and directing partition of the house properties through a Commissioner appointed by a court. Against that judgment and preliminary decree, Budha preferred an appeal before the District Judge. The learned District Judge by his order dated 16-5-1951 allowed the appeal and set aside the order of the learned trial Judge and dismissed the plaintiff''s suit with costs. Against that judgment and decree, Sheo Dayal plaintiff has come up in second appeal. I have heard the learned counsel for the appellant and for respondent No. 1. The appeal has been heard ex parte, against respondent No. 2.

The first question for my determination is whether Ex. A was admissible in evidence for a collateral purpose that is for proving the nature of the possession of the parties over the properties in suit. Exhibit A bears the date 2-5-1898. It is actually a document showing how certain arbitrators had divided the properties between the three branches of the family. It is an unregistered document and it is clear that it cannot be admitted in evidence to prove the distribution of the properties between the three branches. The learned District Judge, however, held that it could be admitted in evidence for the collateral purpose of showing that in the year 1898 there was a partition in the family and since then the nature of the possession of the parties over different items of the properties has been as separate and exclusive owners. The learned counsel has referred me to - ''Varada Pillai v. Jeevarathnammal, AIR 1919 PC 44 (A). This ruling makes it clear that Ex. A can be referred to for the collateral purpose of proving the nature and character of the possession following the execution of the document that is it can be referred to as showing that after the execution of the document each of the co-sharers was in the sole and exclusive possession of the properties as owner. The learned counsel for respondent No. 1 has referred me to - Mt. Thekura and Others Vs. Sukhraj Singh, and - Ramlaxmi Ranchhodlal Vs. The Bank of Baroda Ltd., These rulings are to the same effect. I am, therefore, of opinion that the learned District Judge was right in admitting Ex. A into evidence for the collateral purpose of proving the nature and character of the properties in possession of the parties in suit during the periods] subsequent to the execution of 1898 deed.

The second point urged by the learned counsel for the appellant is that it was not proved that Ex. A has been properly executed by persons who are alleged to have marked it. The learned counsel for respondent No. 1 has referred me to - AIR 1943 83 (Privy Council) . The learned counsel has also referred to the proceedings of 24th September 1948. Then Mr. Hem Chandra the learned counsel for the plaintiff had stated that the document was inadmissible for want of stamp and registration. No objection as to its due execution was taken I am of opinion that such an objection cannot be taken at this stage.

The question of admissibility has been decided in favour of respondent No. 1. The findings of fact arrived at by the learned District Judge are binding on this Court.

No other point has been pressed before me. Accordingly, I see no force in this second appeal and dismiss it with costs.