J.V. Gupta, J. - (1.) THIS is Plaintiff's second appeal whose suit for declaration has been dismissed by both the Courts below.
(2.) BRIEFLY stated the facts are that Suhail Singh, father of Khem Singh was holding certain property in Pakistan which was ancestral in nature. After the death of Suhail Singh, his son Khem Singh purchased land from the income of the ancestral property in order to make his son Bachan Singh as Lamhardar. In lieu of his land held in Pakistan he was allotted 965 Kanals 7 Marias of land and Bachan Singh his son was allotted 294 Kanals 12 Marias of land in lieu of his land held in Pakistan. It was alleged that there was a dispute between the heirs of Khem Singh regarding the aforesaid land and ultimately the parties made a family settlement vide which Bachan Singh, Khem Singh got 316 Kanals 6 Marias of land. Gurdial Singh, Nachhatar Singh and Angrez Singh got land measuring 309 Kanals 7 Marias. Katar Singh Avtar Singh and Surain Singh got land measuring 314 Kanals 12 Marlas. Jai Singh Gura Singh got 7/8th share and Bishan Kaur got 1/8th share i.e. 315 Kanals of land. According to the said settlement, a memorandum of partition was written on 24.2.1965 mark 'A'. According to the Plaintiffs, since then the parties are in possession of the land allotted to them and have become their owners. In any case the Plaintiffs are in possession of the suit land since 24.2.1965 and they have become owners of the same by adverse possession. Bachan Singh having died, the land allotted to him has been inherited by Kartar Singh, Surain Singh and Avtar Singh the three brothers. However, the Defendant Surain Singh is backing out from the family settlement and hence the present suit was filed on 2.9.1981 for declaration. The suit was contested by Surain Singh, Defendant on the plea that no family settlement dated 24.2.1965 as alleged took place and that Khem Singh did not purchase land in the name of his father Bachan Singh as benamidar from the income of the ancestral property. It was also denied that the parties were in possession of the land allotted to them as alleged in the plaint. The learned trial court found that the Plaintiffs have failed to prove that they are entitled to declaration as prayed for on the basis of family settlement deed dated 24.2.1965. Accordingly the trial Court, the said document is not proved as it requires compulsory registration being the partition deed. Moreover, the said document was never implemented as no mutation was ever entered into on the basis of the said document nor any entries were made in the revenue record. It was further found that it was not proved that Khem Singh purchased the land in the name of Bachan Singh father of Surain Singh from the income of the ancestral property. The Plaintiffs were not held to be the owners by way of adverse possession In view of these findings the Plaintiffs' suit was dismissed. In appeal, the learned District Judge affirmed the said findings of the trial Court and thus maintained the decree dismissing the Plaintiffs' suit Dissatisfied with the same the Plaintiffs have filed the second appeal in this Court. During the pendency of this appeal the Plaintiffs also moved an application, CM. No. 1095 -C of 1986 for producing additional evidence under Order 41, Rule 27, Code of Civil Procedure in the form of Jamabandies, etc. Notice of this application was given to the opposite counsel who has filed his reply and also produced certain documents.
(3.) LEARNED Counsel for the Plaintiff -Appellants contended that the document dated 24.2.1965 Mark 'A' was executed by way of family settlement and therefore was admissible as such and did not require any registration. According to the learned Counsel, the view taken by the courts below in this behalf was wrong and illegal. It was further contended that from the evidence on the record particularly the nehri Girdawaris PW5/1 to PW5/15, it was proved that after the said settlement the parties have taken possession of their respective shares and since the said evidence has not been considered, the finding arrived at by the Courts below is vitiated.;