Judgment

SEN, J.

( 1 ) THIS appeal by special leave by the defendants arises in a suit for a dcclaration and injunction brought by the plaintiffs and in the alternative for partition. They sought a declaration that they were the owners in possession of the portions of the property delineated by letters B2, B3, B4 and B5 in the plaint map which had been allotted to them in partition, and in the alternative claimed partition and separate possession of their shares. The real tussel between the parties is to gain control over the plot in question marked B2 in the plaint map, known as Buiyanwala gher. Admittedly, it was not part of the ancestral property but formed part of the village abadi, of which the parties were in unauthorised occupation. The only question is whether the plaintiffs were the owners in possession of the portion marked B2 as delineated in the plaint map. That depends on whether the document Exh. P-12 dated 3/08/1955 was an instrument of partition and therefore inadmissible for want of registration under S. 49 of the Indian Registration Act, 1908, or was merely a memorandum of family arrangement arrived at by the parties with a view to equalisation of their shares.

( 2 ) THE facts giving rise to this appeal are that the plaintiffs who are four brothers are the sons of Soonda. They and the defendants are the descendants of the common ancestor Chhatar Singh who had two sons Jai Ram and Ram Lal. Soonda was the son of Ram Lal and died in 1966. Jai Ram in turn had two sons Puran Singh and Bhagwana. The latter died issueless in 1916-17. Puran Singh also died in the year 1972 and the- defendants are his widow, three sons and two daughters. It is not in dispute that the two branches of the family had joint ancestral properties, both agricultural and residential in Village Nasirpur, Delhi Cantonment. The agricultural land was partitioned between Puran Singh and Soonda in 1955 and the names of the respective parties were duly mutated in the revenue records. This was followed by a partition of their residential properties including the house, gher/ghetwar etc. The factum of partition was embodied in the memorandum of partition Exh. P-12 dated 3/08/1955 and bears the thumb impressions and signatures of both Puran Singh and Soonda. In terms of this partition, the ancestral residential house called rihaishi and the open space behind the same shown as portions marked A1 and A2 in the plaint map Exh. PW 25/1, fell to the share of Puran Singh. Apart from this, Puran Singh was also, allotted gher shown as A3 in the plaint map admeasuring 795 square yards. Thus, the total area falling to the share of Puran Singh came to 2417 square yards. The plaintiffs ancestor Soonda on his part got a smaller house called baithak used by the male members and visitors, marked B1 in the plaint map having an area of 565 square yards. Apart from the house marked B1, Soonda also got ghers marked B2 to B5, demarcated in yellow in the plaint map and thus the total area got by Soonda also came to 2417 square yards.

( 3 ) IN terms of this partition, the plaintiffs claim that the parties have remained in separate exclusive possession of their respective properties. However. in February, 1971 the plaintiffs wanted to raise construction over the gher marked B2 in the plaint map and started constructing a boundary wall. Defendants Nos. 1-3, sons of Puran Singh, however, demolished the wall as a result of which proceedings under S. 145 of the Code of Criminal Procedure, 1898 were drawn against both the parties about this property. The Sub-Divisional Magistrate, Delhi Cantt. , New Delhi by her order dated 26/04/1972 declared that the second party, namely Puran Singh, father of defendants Nos. 1-3, was in actual possession of the disputed piece of land marked B2 on the date of the passing of the preliminary order and within two months next before such date and accordingly directed delivery of possession thereof to him until evicted in due course of law. On revisi