Sanjay Misra, J. - (1.) HEARD Sri A.B.Singh, learned counsel for the appellants and Sri Vashishtha Tiwari, who has appeared on behalf of the contesting respondents.
(2.) THIS is a plaintiffs' second appeal filed against the impugned judgement and decree dated 20.1.2000 passed in Civil Appeal No. 177 of 1971 (Shiv Nath Tripathi and others Vs. Smt. Lalita Devi and others) by the II Additional District Judge, Deoria, whereby the Lower Appellate Court has affirmed the judgement and decree of the Trial Court, which had dismissed the suit for cancellation of the sale deed dated 18.8.1969 executed by the defendant Smt. Lalita Devi and had decreed the suit partly with respect to the sale deed dated 25.8.1955 and for permanent injunction against the defendants no. 1 to 4 relating to the land 125/2 Area 67 decimals towards east 134/1 area 65 decimals towards west and 141 area 8 decimals as well as the half southern portion of the house KA, AA, DA, THA and its Sahen towards east mentioned in schedule A of the plaint. Learned counsel for the appellants has assailed the finding of the trial court on Issue No.3 to state that the family settlement dated 15.5.1952 was never denied by the defendant no.1 either in any written pleadings or in the oral statement and, therefore, in view of the provisions of Order VIII Rule 5 of the Code of Civil Procedure, the facts alleged in the plaint would be deemed to be admitted and require no further proof and the suit of the plaintiffs-appellants could not have been dismissed for cancellation of the sale deed. According to him the family settlement dated 15.5.1952 was not required to be registered under the Indian Registration Act and since it was not denied any formal proof of the same by producing the scribe or other evidence, was not required and as such the findings of the trial court as affirmed by the Lower Appellate Court require to be set aside, particularly when under Section 58 of the Indian Evidence Act it does not require to be proved under such circumstances. In so far as the findings recorded on Issue No. 1 regarding the share of the plaintiffs and defendants in the property in question is concerned, the Trial Court has found that the suit property was jointly owned by the parties and there was no family partition effected between them. Learned counsel for the appellants submits that he is not assailing the said finding on Issue No.1 recorded by the Trial Court and as affirmed by the First Appellate Court.
(3.) LEARNED counsel for the respondents on the other hand has submitted that the finding on Issue No. 3 is in accordance with law, because the family settlement alleged to be of 15.5.1952 was not a registered document and hence, in view of Section 49 of the Indian Registration Act it cannot be relied upon. According to him the said family settlement dated 15.5.1952 was not proved by the plaintiff nor any evidence was led by him regarding the family settlement and therefore, on being not registered and not duly proved, it was rightly rejected by the Trial Court as affirmed by the Lower Appellate Court. He also states that the alleged family settlement dated 15.5.1952 was not acted upon as entries of the same were not made for more than 15 years in the relevant revenue records to indicate that the rights of the deceased Sri Vishwa Nath Tiwari and his widow the defendant no.1 had in any manner been extinguished from the property in question. In so far as the finding on Issue No.1 is concerned, learned counsel for the respondents states that the said findings are in accordance with law and no partition between co-sharers had taken place and the defendant no.1 being the widow of Late Vishwa Nath Tiwari, who was the nephew of the plaintiff Sri Shiv Nath Tiwari has inherited only these rights in the property that can be claimed under the family settlement. Upon considering the submissions of learned counsel for the parties and going through the impugned judgements it will be seen that the issue no.3 was as to whether the defendant is a co-sharer in all the properties in dispute and is in possession as such. While deciding the said issue, the Trial Court found that the plaintiff has not able to prove that a partition had taken place between the recorded co-tenure holders of the agricultural land and the house in dispute. The Trial Court was of the view that since the family settlement dated 15.5.1952 (Ex.26) had not been proved nor the marginal witnesses or scribe have been examined and since the document was not registered, it could not extinguish the title of the defendant no. 1 Smt. Lalita Devi or her deceased husband Late Vishwa Nath Tiwari.;