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IN THE HIGH COURT OF CALCUTTA
Shivakant Prasad, J.
Harapada Mondal & Ors. - Petitioners
Versus
Nishikanta Mondal & Ors. - Opposite Parties
C.O. 142 of 2013
Decided On : 17-06-2016
AMICABLE PARTITION - REGISTRATION ACT, 1908 - SECTIONS 17, 49 - EVIDENCE ACT, 1872 - SECTION 91 - SKETCH MAP PREPARED BY AMIN - ADMISSIBILITY IN EVIDENCE - FAMILY ARRANGEMENT - ESSENTIALS AND PRINCIPLES.
Fact of the Case:
Plaintiffs filed a Title Suit for declaration of title and injunction in respect of 19 sataks of land alleging amicable partition and exclusive possession. The defendants contested the suit. During the trial, the plaintiffs sought to mark a sketch map prepared by an Amin as an exhibit. The defendants objected to the admissibility of the sketch map on the ground that it was compulsorily registrable under Section 17 of the Registration Act, 1908 and was not registered.
Finding of the Court:
The court held that the sketch map was not compulsorily registrable under Section 17 of the Registration Act, 1908, as it was not a document creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards. The court further held that the sketch map was admissible in evidence as a collateral document to show the nature and character of possession of the parties in pursuance of the family settlement.
Issues: 1. Whether the sketch map prepared by the Amin was compulsorily registrable under Section 17 of the Registration Act, 1908? 2. Whether the sketch map was admissible in evidence as a collateral document to show the nature and character of possession of the parties in pursuance of the family settlement?
Ratio Decidendi: 1. The court relied on the principles laid down in the case of K.B. Saha and Sons Private Limited v. Development Consultant Limited, (2008) 8 SCC 564, to hold that a document required to be registered, if unregistered, is not admissible in evidence under Section 49 of the Registration Act, but can be used as an evidence for collateral purpose as provided in Section 49 proviso of the Registration Act. 2. The court also relied on the decision in the case of Kale & Ors. v. Deputy Director of Consolidation & Ors. to hold that a family arrangement is not required to be registered and that even if it is not registered, it can be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement.
Final Decision: The court allowed the revision petition and set aside the order of the trial court rejecting the sketch map as an exhibit.
Shivakant Prasad, J.
Challenge in this application is against the Order being No. 59 dated 04.07.2012 passed by the learned Civil Judge (Junior Division), 1st Court, Diamond Harbour arising out of Title Suit No. 52 of 2006.
2. Chronological event leading to the instant case is that the petitioners as plaintiffs instituted a Title Suit being No. 52 of 2006 against the opposite parties as defendants in the learned Court of Civil Judge (Junior Division), 1st Court, Diamond Harbour for declaration of title along with a prayer for injunction in respect of 19 sataks of land under R.S. Khatian No. 770, L.R. Khatian 818/1530 in Plot Nos. 2106 and 2107 of Mouza Rajarampur within P.S. Falta, District-24-Parganas (South).
3. The case of the plaintiffs/petitioners as stated in the plaint in short is that the case plots along with other plots in suit Khatian belonged to plaintiffs and other co-sharers. Long before R.S. settlement operation there was an amicable partition in between the co-sharers for proper enjoyment and by virtue of such partition done amicably plaintiffs get Plot No. 2106, 2107 bastu 11 sataks and are in exclusive physical possession. The name of the plaintiffs have been duly recorded in the Record of Rights and plaintiffs raised their bastu and converted Plot No. 2106 as tank.
4. It is stated that the plaintiffs filed Title Suit No. 1 of 2004 against one Naren Mondal (since deceased) and since legal heirs of Naren Mondal were not made parties, defendants No. 1 to 4 threatened the plaintiffs from forcible dispossession of the plaintiffs for which the plaintiffs were compelled to file the instant suit.
5. Specific case of the plaintiffs/petitioners is that by virtue of such amicable partition plaintiffs got Plot No. 2106 measuring about 08 sataks, Plot No. 2107 measuring about 11 sataks and the defendants got Plot No. 2108 measuring about 07 sataks Plot No. 2109 measuring about 07 sataks. Non-suit plots i.e. in 2110, 2111 and 2112 plaintiffs and defendants got in equal share. By partition plaintiffs got 29 sataks, defendant got 24 sataks and the parties according to their wish and desire got the same partitioned with the help of an Amin and the parties also signed in the sketch map drafted by Amin. This fact was not averred in the original plaint and the plaint was amended to that effect on an application. Defendants appeared in the suit and were contesting the same by filing a written statement denying all material particulars made in the plaint.
6. The suit proceeded and P.W.-1 was examined and during trial petitioners submitted the sketch map of Amin for marking the same as an exhibit at that stage the defendants filed an application dated 01.02.2011 contesting the same. Petitioners however filed a written objection to the aforesaid application dated 01.02.2011. The application dated 01.02.2011 filed by the defendants came up for hearing before the learned Judge on 04.7.2012 who by his Order No. 59 allowed the same and directed that the sketch map dated 28.11.1988 as filed by the plaintiffs will not be marked exhibit in the case.
7. Being aggrieved by the said order the petitioners preferred this revision, inter alia, on the grounds that the learned Judge failed to consider the settled proposition that a sketch map prepared by an Amin is not to be registered and the same is a document of previous partition amongst the co-sharers and also failed to appreciate the plaint's case that partition amicably has been made long before R.S. settlement operation in between the parties.
8. It is submitted on behalf of the petitioners that the sketch map is a Memorandum of Partition and as such there is no requirement of registration of the said document and as such the document is required to be marked as an exhibit.
9. Accordingly, the petitioners have prayed for setting aside order impugned as bad in law and in fact.
10. Mr. Sandip Das learned Counsel for the petitioners/plaintiffs submitted a decision in case of K.B. Saha and Sons
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