JUDGMENT :- The present appeal is directed from the judgment and order passed by 3rd Adhoc Additional District Judge, Wardha on 23rd March, 2004, whereby the first appellate Court had set aside the judgment and decree passed in Regular Civil Suit No.38/1997 dated 30-11-1999 and decreed Regular Civil Suit No.48/1997. Thus, original plaintiff Vatslabai (in Regular Civil Suit No.48/1997) was held, entitled for possession to the portion of 0.58 R out of land Survey No.3/2 described in the plaint para 6 (read with map Exh.41). In the result, the appellant herein and their father Mahadeo Tulshiram Pathade were directed to hand over the possession of the said land situated in Mouza : Garpit, Tahsil: Karanja, District: Wardha and were further directed to pay damages, jointly and severally in the sum of Rs.24,000/- + notice charges and expenses in the sum of Rs.500/-. Separate order was made for inquiry as per Order 20, Rule 12 of the Code of Civil Procedure for mesne profits.

2. In the present appeal thefollowing substantial questions of law were raised:

"(1) Whether Exh.43 is merely a memorandum of partition or a document compulsorily registerable?

(2)Whether the field Survey No.18 mentioned in paragraph 13 of the judgment of the trial Court is available for partition between parties?"

3. Smt. Vataslabai, respondent herein, had filed Regular Civil Suit No.48/W97 in the Court of Civil Judge Jr. Dn. at Karanja (Ghadge), District: Wardha with prayer for removal of encroachment and possession of the suit land. By judgment and order dated 30-111999 the said suit was dismissed with costs and thereafter the judgment and order of the trial Court was reversed in the appeal as stated above in Regular Civil Appeal No.234/1999.

4. The relevant facts may be stated as under:

Late Tulshiram Pathade had two sons viz. Mahadeo and Shyamrao. Mahadeo died on 27-08-2007. Shyamrao died in the year 1991. Respondent (original plaintiff) Smt. Vatslabai is widow of Shyamrao. Deceased Mahadeo has three sons namely, Punjab (appellant No.2), Bandu (appellant No.3), Bablu (appellant No.4) and a daughter Smt. Anusaya Dhobe (appellant No.5). It is contention of the plaintiff/respondent that she had received 1/2 share in the partition in the year 1994. While it appears that in the trial Court before Civil Judge Jr. On., Karanja (Ghadge), District: Wardha it was held that the partition of the suit land between the plaintiff and first defendant Mahadeo in the year 1994 was not proved. As also the alleged encroachment upon the land owned by the plaintiff Vatslabai from Survey No.312. The relief of damages and expenses was also denied to the plaintiff Vatslabai. The trial Court had observed that the Range Forest Officer, Arvi has granted field Survey No.18, admeasuring 4.45 hectares purportedly for cultivation to Mahadeo. Thus, holding that the suit land was not partitionable without sanction of the Collector.

5. The findings recorded by the trial Court were overturned in Regular Civil Appeal No.234/1999. The judgment and decree passed by the trial Court was set aside and Regular Civil Suit No.48/1997 was decreed in favour of plaintiff Vatslabai. Thus, the judgment and order passed by the first Appellate Court is subject of challenge.

6. Heard learned Advocate Shri. Chopde for the appellants and learned Advocate Mrs. Chandekar for respondent.

7. The learned counsel for the appellant contended that registration was compulsory if the immovable property, which is to be partitioned, is valued more than Rs.100/ -, pursuant to document as was exhibited in the present case between deceased Mahadeo and Vatslabai (original plaintiff). Thus, according to the learned counsel for the appellant document at Exh.43, dated 2nd September, 1994, was compulsorily registrable and therefore, not admissible in evidence.

8. The learned counsel made reference to the oral evidence led in the trial Court as also pleading by the plaintiff that in the year 1994 the mutual partition in betw

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