The necessity of registration for transfers valued over Rs. 100 and the importance of documentary or oral corroborative evidence to support claims of oral ewaz in property partition.

JUDGMENT

ajoy Kumar Mukherjee, J. - Being aggrieved by and dissatisfied with the Decree and judgment dated 30. 07.2019 passed by additional District and Sessions Judge 1st Track Court , Basirhat in Title appeal No. 32 of 2015, arising out of the judgment and decree dated 24.06.2015 passed by the learned Civil Judge (Senior Division), Basirhat in Title Suit No. 60 of 2001, the defendant/appellant has preferred the present second appeal before us.

2. Plaintiffs case in brief is that by way of several deeds plaintiff No. 1 to 3 and defendant No. 1 by separate deeds got 39 satak of land in the suit property and enjoying by way of amicable arrangement, their respective portion after raising constructions, and planting trees. Plaintiffs asked defendant for making partition of the suit property by metes and bounds, in terms of settlement deed dated 1st Falgun 1407 B.S., but the defendants did not agree and defendant No. 1 thereafter threatened the plaintiffs that he would dispossess them from the suit property and would cut down the trees planted therein and for that reason, plaintiff filed the suit for partition.

3. Defendant No. 1 contested the suit by filing written statement and contended that about 18 to 19 years ago he acquired 15 satak of land adjacent to the main road and has raised construction after incurring huge expenditure. Further case of defendant No. 1 is that subsequently he acquired 14 satak of land form plaintiff No. 3 by way of oral ewaz and he is enjoying that land. accordingly defendant No. 1 has got separate allotment in respect of the said 29 satak of land including said 14 satak of land which he acquired by way of oral ewaz with plaintiff No. 3.

4. Learned Trial Court after considering pleadings submitted by both the parties, framed 10 issues. In order to prove plaintiff's case plaintiff Bibhuti Bhusan manna and one Prabir Chakraborty faced the dock as PW1 and PW2 respectively and to prove defence case, defendant No. 1 and one Panna Lal Giri were examined as DW1 and DW2 respectively. Plaintiff has proved 14 deeds, and concerned rent receipts, which are marked as exhibit and on the other hand defendant filed and proved deed No. 2471 dated 02.05.1990 and rent receipts in connection with the LR Khatian No. 1263/1 which are also marked as exhibit.

5. after considering materials in the record, including evidence and documents, learned trial court held that plaintiff is entitled to obtain 39 decimal of land out of 78 decimal mentioned in the schedule to the plaint and accordingly he gave two months time to partition the suit property by metes and bounds, failing which either party will be at liberty to make prayer for appointment of partition commissioner for executing preliminary decree. Defendant preferred appeal against the judgment and decree which was disposed of by learned additional District Judge, Basirhat, on 31.03.2011. Learned appellate Court was pleased to allow the appeal on contest and was further pleased to set aside, the judgment and decree passed in T.S. 60 of 2001 dated 30.05.2008 and 24.06.2008 respectively. Learned appellate Court was further pleased to send back the case record on remand for deciding afresh after allowing plaintiff to prove their documents already filed and defendant to adduce fresh evidence on their behalf. after remand, the trial Court again decreed the suit in preliminary form declaring plaintiffs' 1/2 share i.e. 39 1/2 decimal of land in the suit property and directed the parties to make amicable partition by metes and bounds, in terms of preliminary decree.

6. Learned Trial Court did not believe that there was any ewaz in between defendant No. 1 and plaintiff No. 3, as the property in question is valued more than Rs. 100/-and as such act of exchange without registration cannot sustain in the eye of law. Learned Trial Court also held there was no witness in whose presence alleged oral ewaz was made and on the contrary the document shows that the suit property measuring 39 decimal