An unregistered deed of partition which is a record of partition that preceded its coming into being and does not contemporaneously split unity of title into severalty is admissible in evidence.

JUDGMENT :- This second appeal is by the plaintiffs from the confirming decision dated 10-4-1969 of Sri L. Mallik, Additional District Judge, Dhenkanal passed in T. A. No. 18/128 of 1967/1965.

2. The plaintiffs sued for declaration of their title to a passage forming part of plot No. 976 (Sch. A), for recovery of possession of the same and for injunction restraining the defendant from interfering with the plaintiff's user of the said passage. The plaintiffs also prayed for recovery of damages on account of damage caused to the ridge on plot No. 2789 (Sch. C) and for declaration of title to 0.01 decimal of land on plot No. 996 (Sch. B).

3. The plaintiffs and defendant are members of one family as would appear from the following genealogy :-

4. The plaintiff's case may be shortly stated. The three sons of Ratnakar separated from each other in all respects during the lifetime of their father and got their names separately recorded in revisional settlement of 1923-24 in respect of properties which fell to their shares in that partition and some properties were left joint for the maintenance of their mother. The said undivided properties were recorded jointly in their names. Subsequently in 1927, when the defendant's father was dead, this joint property underwent a second partition. The allotments made in this partition was recorded in a document which was proved as Ext. 1. Dharani, shortly before his death, on 1-7-1943, executed a document, nomenclatured as Chuktipatra, (Ex. B) distributing his separate properties which he had acquired in the aforesaid partitions amongst his three nephews, namely, plaintiffs 1, 2 and defendant equally. Thereafter the defendant and the plaintiffs filed a petition in the Court of the District Judge, Dhenkanal on 1-3-1946 praying for sanction or ratification of the aforesaid settlement under Ex. 1. This proceeding terminated in a compromise to which Hara Dibya, a minor then, was a party as per compromise petition (Ex. 3). Thereafter the properties of Dharani, were possessed by his nephews in three equal shares since 1946 as per Ex. 1. In 1963, the defendant blocked the common passage as set out in Schedule A, dispossessed the plaintiffs from 0.01 decimal of land as described in Schedule 'B' and damaged the western ridge of the land allotted to the plaintiffs out of plot No. 2789 as per Schedule 'C'. Those overt acts of the defendant gave rise to the cause of action for the present suit.

5. The defendant denied the two partitions pleaded by the plaintiff and impeached the genuineness of Exts. 1 and B. His case is that the parties are still in joint and undivided status.

6. The trial Court while dismissing the suit, rendered the following findings;

(a) The father of defendant died in 1928;

(b) Ex. 1 being an unregistered deed of partition is inadmissible in evidence;

(c) There was severance of joint status, but partition by metes and bounds had not taken place. The different members of the family possessed different portions of the land by amicable arrangement;

(d) Ex. B was also held to be inadmissible on account of non-registration and that the properties dealt with under Ex. B being joint family properties could not be bequeathed or settled by Dharani, as if these were his separate properties.

7. The appellate Court while confirming the decision of the trial Court came to the following conclusions;

(i) Ex. B is inadmissible in evidence whether it be treated as deed of gift or as a Will. As a deed of gift it is not admissible for want of registration and as a Will it is also inadmissible for want of probate;

(ii) Defendant's father died some time in 1925-26;

(iii) Ex. 1 is inadmissible, being an unregistered deed of partition;

(iv) The prior partitions pleaded by the plaintiffs are not true;

(v) Hara Dibya being not a signatory to the compromise petition (Ex. 3) the same is not binding upon her.

8. The main contention on behalf of the plaintiffs is that the findings of fact arrived at by the lower appellate Court ar