JUDGMENT:

1. The Original Defendants are before this Court challenging concurrent judgments and orders passed by the two Courts below whereby the suit filed by the Respondent No.1 (Original Plaintiff) seeking partition was decreed in terms of the prayers made in the suit.

2. The Respondent No.1, later represented through his legal representatives as plaintiffs, filed the suit in 1983 for partition of the suit property and praying for allotment of 1/3rd share in the property on the northern division in which the residential house of the Plaintiff was located. The Original Plaintiff had purchased undivided 1/3rd share of the property from his vendor by registered sale deed dated 27.02.1980. In the plaint itself, it was stated that the Plaintiff and Original Defendant No.1 and his wife the Original Defendant No. 2, had entered into an agreement for division of the property, but the said agreement was signed only by the Original Defendant No 1, while his wife did not sign the same. It was also stated in the plaint that the said agreement was never presented for registration before the office of the Sub-Registrar. The said agreement was entered into on 17.07.1980, but according to the Plaintiff, it was never acted upon. On this basis, the Plaintiff sought the decree of partition and allotment of 1/3rd share in the property, which would include the residential house occupied by him.

3. The Original Defendant Nos. 1 and 2 and Defendant Nos. 3 to 14 filed separate written statements. While the Defendant Nos. 1 and 2 referred to and relied upon the said agreement dated 17.07.1980, to claim that the division of the property had already taken place and that therefore, the suit deserved to be dismissed, the Defendant Nos. 3 to 14 denied the claim of the Plaintiff of being joint owner and being in possession of the suit property. It was claimed that the aforesaid Defendants were in possession and enjoying the said property. On the basis of the pleadings of the rival parties, issues were framed and evidence was led. It is an admitted position that while the Plaintiff entered into the witness box and deposed as a witness, no witness deposed on behalf of the Defendants.

4. By Judgment and Order dated 25.10.2000, the Court of Second Additional Civil Judge Senior Division at Mapusa decreed the suit. It was directed that 1/3rd share in the suit properties of the Plaintiffs was to be partitioned by metes and bounds and the northern side portion of the property consisting of the residential house of the Plaintiffs was to be allotted to them. The Original Defendants had also raised a counterclaim pertaining to the alleged right of pre-emption, but the same was dismissed. Aggrieved by the same, the Original Defendants i.e. the Appellants herein, filed First Appeal before the District Court. By Judgment and Order dated 14.09.2004, the Appellate Court dismissed the appeal and confirmed the decree, passed in favour of the Plaintiffs. Various contentions were raised before the Appellate Court, but on each count, the Appellate Court held in favour of the Original Plaintiffs and dismissed the appeal.

5. The present Second Appeal was admitted on 13.03.2009, on the following substantial question of law: -

“Whether the Courts below fell in error in holding that the agreement dated 17.07.1980 was of no consequence particularly when the Plaintiffs have not pleaded that the document was void and also particularly when the Defendants did not challenge the document on any count?”

6. Mr. Coelho Pereira, learned Senior Counsel appearing for the Appellants i.e. Original Defendants submitted that the Courts below had proceeded by ignoring the aforesaid agreement dated 17.07.1980, on the ground that it was not registered. It was submitted that section 17(1)(b) of the Registration Act, 1908, was applied to the said document and it was held that since the said document was not registered, it could not be looked at by the Court. The learned Senior Counsel emphasized on the asp