JUDGMENT

1. This second appeal, under section 100 of CPC, has been filed against the judgment and decree dated 22.11.2018 passed by Second Additional District Judge, Bina, District Sagar in RCA No.21A/2014, arising out of the judgment and decree dated 31.10.2012 passed by Civil Judge, Class-I, Bina District Sagar in Civil Suit No.69A/2008.

2. The appellant is the plaintiff, who has lost his case from both the Courts below. The appellant filed a suit for declaration of title and permanent injunction on the ground that the defendants are children as well as widow of Late Surat Singh Kurmi, who is the real brother of the plaintiff. The plaintiff and late Surat Singh are the sons of Late Brijlal Kurmi and accordingly they are entitled to inherit his property. Surat Singh had expired about 8 to 10 years prior to the institution of civil suit. On 9.5.1971 a family partition had taken place between him and Surat Singh and a memorandum of partition was prepared and accordingly the plaintiff and Surat Singh got possession of their respective shares. The land, which went to the share of the plaintiff, is mentioned in Paragraph 4 of the plaint and land, which went to the share of Surat Singh, is mentioned in Paragraph 5 of the plaint. It was claimed that after the partition separate Bhu adhikar Avam Rin Pustika were prepared and revenue entries were made. On the basis of their individual Rin Pustikas, the plaintiff and Late Surat Singh obtained loan for agricultural purposes etc. In the year 1988, Bhangarh Khimlasa Road came into existence, as a result, the land which came to the share of the plaintiff became valuable as most of the land was situated by the side of a newly constructed road. It was claimed that for the said reason, the defendants are now disputing the genuine partition, which had taken place in the year 1971 and now demanding half share in each agricultural field. It was claimed that the partition has already been taken place between Surat Singh and his brother about 30 years back and accordingly the suit was filed for declaration of title and permanent injunction.

3. The defendants filed their written statement and denied that any partition had taken place on 9.5.1971 during the lifetime of Surat Singh. It was claimed that the family partition, relied upon by the plaintiff, is a forged document. The SDO by his order dated 18.3.2005 has directed for partition of the land and the said order is correct.

4. Thus the only question of dispute between the parties is that whether any partition had taken place between the parties on 9.5.1971 or not ?

5. The trial court, after framing issues and recording evidence, dismissed the suit filed by the appellant.

6. Being aggrieved by the judgment and decree passed by the trial court, the appellant preferred an appeal, which too has been dismissed by the First Appellate Court by the impugned order.

7. Challenging the judgments and decrees passed by the Courts below, it is submitted by the counsel for the appellant that the family partition (Ex.P.5) is not a partition deed but it is a memorandum of partition, therefore, it was not required to be registered. Even otherwise, the said document can be read for collateral purposes and accordingly has proposed the following substantial questions of law:-

“A. Whether from the statement of P.W.3 Ramgopal the execution, attestation and contents of the Fard Batwara Ex.P.5 have legally been proved as required under the provisions of Indian Evidence Act illegally held to the contrary by the Courts below?

B. Whether the course adopted by the Courts below of themselves comparing the signatures of attesting witnesses and Surat Singh on Fard Batwara Ex.P.5 with other documents on record is wholly illegal and they ought to have called for a report of a handwriting expert in that regard even in absence of filing of any application for that purpose by the parties?

C. Whether, the Lower Appellate Court has committed a gross error of law in not taking into c