Rakesh Kumar Jain, J. - (1.) THE plaintiffs are in second appeal against the judgment and decree of both the Courts below whereby their suit for declaration and permanent injunction has been dismissed.
(2.) THE case of the plaintiffs is that they have become exclusive owners in possession in equal shares of the land detailed in the head note of the plaint on the basis of memorandum of mutual partition dated 2.6.1971 and sought permanent injunction to restrain defendants from alienating any portion of Khasra No. 960 (8 -11), 961(6 -12), 962(12 -12), 963(8 -17) total measuring 36 Kanals 12 Marias. It is alleged that Karam Singh, father of the plaintiffs, was the owner in possession of the suit property to the extent of 2/3rd share. Karam Singh, father of the plaintiffs died about 22 years ago and Ram Kishan, father of defendants No. 1 and 3 and husband of defendant No. 4 died about 18 years ago. Their estate devolved upon the plaintiffs and defendants. It is further alleged that Karam Singh and Ram Kishan were real brothers who effected a partition of the suit land during their life time and executed a memorandum of mutual partition dated 2.6.1971 which was thumb marked and attested by Ramji s/o Gainda. As per the case of the plaintiffs, Karam Singh was given 24 Kanals 2 Marias of land and Ram Kishan was given 18 Kanals 8 Marias of land. More land was given to Karam Singh as it was barren. It was further alleged that the factum of mutual partition could not be incorporated in the revenue record in view of the cordial relations between the parties and their predecessors in interest. However, with the rise in prices of the immovable property, the defendants have intentionally denied the contents of mutual partition dated 2.6.1971, therefore, declaration was sought that the plaintiffs were to be declared exclusive owners in possession of the suit property and the defendants be restrained from alienating any part of the said land. In the written statement, besides taking preliminary objections, it was alleged on merits that the memorandum of mutual partition dated 2.6.1971 is forged and fabricated. It is denied to have been executed as alleged nor it was ever thumb marked by Ram Kishan. It was alleged that partition deed is ambiguous and does not disclose the identity of land. The parties to the suit are still in joint possession of the joint land and proceedings in respect of the partition are still pending in the Court of Tehsildar, Phillaur. From the pleadings of the parties, following issues were framed by the trial Court: (i) Whether the plaintiffs are entitled for declaration as prayed for? OPP (ii) Whether the plaintiffs are entitled for permanent injunction as prayed for? OPP (iii) Whether they took the partition of the suit property on 2.6.1971? OPP (iv) Whether the suit is time barred? OPD (v) Whether the suit is not maintainable in the present form? OPD (vi) Whether the plaintiffs are barred by their own act and conduct to file the present suit? OPD (vii) Whether the suit is bad for misjoinder and non joinder of necessary parties? OPD (viii) Whether the memorandum of partition dated 2.6.1971 is forged and fabricated document? OPD (ix) Relief. The trial Court dismissed the suit vide its judgment and decree dated 1.10.2001 observing that the memorandum of partition (Ex.Pl) does not bear any khasra number and is also silent in respect of other two brothers of Ram Kishan and Karam Singh. It was held that partition deed was never effected in the revenue record. The first Appellate Court also found that document Ex.Pl does not bear any khasra number and such nothing is clear as to which land has been given to predecessor in interest of the plaintiffs and which part of the land has fallen to the share of predecessor in interest of the defendants. It was also observed that the document Ex.Pl is only between Karam Singh and Ram Kishan though they had two other brothers Bishan and Rulia. Rulia had died and his property was inherited by his widow Dhan Kaur which is apparent from the copy of jamabandi (Ex.D3) for the year 1969 -70. In the absence of the other two right holders of the property, it cannot be said to be complete partition between the parties and moreover, factum of partition was never carried out in the revenue record. The lower Appellate Court also held that memorandum of partition is an act in presenti, therefore, it required registration because as a matter of fact it was an exchange of property.
(3.) SH . Onkar Singh, learned Counsel appearing on behalf of the appellants has vehemently contended that the property in suit was orally partitioned between the parties and only a memorandum was executed on 2.6.1971 which is enforceable even in the absence of its non -registration.;