Vineet Kothari, J. - (1.) THIS writ petition is directed against the order dtd.25.3.2008 whereby the learned trial Court in a suit filed for eviction against the defendants - tenants held that the agreement dtd.4.5.1991 was a partition -deed which requires registration as per Section 17 of the Indian Registration Act and in absence of the same, the said document was not admissible in evidence and therefore, the plaintiff Narendra Kumar could not have right to maintain the suit in question.
(2.) THE learned Counsel for the plaintiff - petitioner submits relying on the decision of Hon'ble Supreme Court in the case of Roshan Singh v. Zile Singh reported in, AIR 1988 (SC) 881 that the said family arrangement is merely a document regarding family arrangement between the members of the family and the same does not amount to partition and therefore, no registration of the said document was necessary in order to make it admissible in evidence. He further submits that question of title is not relevant in eviction matter under Rent Control Act and therefore, the learned trial Court has wrongly held that the suit cannot be maintained by the said Narendra Kumar. Having heard the learned Counsels and in view of the judgment of the Hon'ble Supreme Court cited at the Bar, this Court is of the view that the learned trial Court has erred in rejecting the said document as inadmissible in evidence. The Hon'ble Supreme Court in para 9 of the said judgment held as under: It is well -settled that while an instrument of partition which operates or is intended to operate as a declared volition constitution or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well -settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondly, evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition : See Mulla's Registration Act, 8th Edn. pp.5457.
(3.) A bare perusal of Annex.1 document clearly shows that the said agreement between the various family members on the stamp of Rs. 100/ -only refers understanding of various family members partitioning their ancestral property in the manner it has been done and according to said document, the said Narendra Kumar -present petitioner had the said property in question for which the eviction suit was filed by him. As the question of title is undoubtedly not relevant in eviction matter under the Rent Control Act, therefore, the learned Court below does not appear to be justified in rejecting the said evidence as inadmissible.;