Sheo Dayal vs Budha and another

Nigam, J.C.

This is an application under Art. 133 (1)(c) for a certificate that the case is a fit one for appeal to the Hon''ble Supreme Court.

Sheo Dayal filed a suit claiming partition of certain properties stated to be held jointly by the parties. The learned Subordinate Judge decreed the suit. In appeal, the learned District Judge held that as the parties were in separate possession and enjoyment of their properties, no question of partition arose. This decision was affirmed by this Court in judgment dated 28-4-53.

The learned District Judge held that document Ex. A which was an unregistered partition, deed and had been held to be inadmissible in evidence by the learned trial Judge could be admitted in evidence for the collateral purpose of showing that in 1898 a partition had taken place in the family and since then the nature of possession of the parties over different items at property had been as separate owners.

I was of opinion that the document could be referred to for the collateral purpose of proving the nature and character of the possession following the execution of the document and that it could be referred to as showing that after the execution of the document each of the co-sharers was in sole and exclusive possession of the properties as owner.

The learned counsel for the applicant has urged that there is difference of opinion between the High Courts as to whether an unregistered partition deed can be admitted in evidence for a collateral purpose and the interpretation of the words ''collateral purpose''.

The learned counsel for the applicant has relied on - ''Ramayya v. Achamma'', AIR 1944 Mad, 550 (FB) (A). In this case the plaintiff based his title on the partition deed. It was held that where the property belonged to joint family and the agreement for partition cannot be proved for want) of registration, the Court could only regard the propery as still belonging to the joint family.

Reference has also been made to - K. Mahammad Ghouse Sahib Vs. Jamila Bi and Others, but I am of opinion that the facts of that case are slightly different. In that case, it was held that an agreement to divide embodied in a partition deed was not an independent transaction and could not be considered as a collateral purpose.

On the other hand, there are the three rulings to which I was referred when the appeal was heard and - ''Munshi Ram v. Thakar Dass'', AIR 1951 Pepsu 87 (C), to which I have been referred today. The difficulty in the present case is that the contesting defendant did not plead that he had completed his title by 12 years'' adverse possession as owner. It may therefore be argued that the separate possession pleaded by him referred directly to the partition which was evidenced by document Ex. A.

I am of opinion that there is some conflict of opinion as to whether in the particular circumstances of the case, the putting in possession of the co-sharers of the property allotted to each one of them can be considered, as a collateral purpose and whether document Ex. A could be read in evidence.

That the question is of general importance is not challenged.

I, therefore, grant the certificate prayed for. Under O. 45, R. 7, Civil P.C., J direct the applicant Sheo Dayal to furnish security in cash or in Government security for the costs of the respondents in the sum of Rs. 4,000/- (Rupees four (thousand only) within six weeks of today. The security must be furnished in the Court of the District Judge, State of Ajmer. The applicant must further furnish within the same period a sum of Rs. 500/- (Rupees five hundred only) to defray the expenses of translation, printing, etc.