JUDGMENT Shiv Charan, J.
1. Heard Sri Prabhakant Mishra, learned Counsel for the appellant and Sri K.K. Tiwari, learned Counsel for the respondents on the point of admission of the second appeal for hearing and I have also perused the judgments of the courts below and other documents filed on record. From a perusal of the record it is evident that appellant instituted O.S. No. 216 of 2000, Mohd. Ibrahim v. Mubarak Khan and Ors. for partition of the joint family property and the appellant claimed his share 1/3. The defendants/respondents contested the suit and filed written statement and alleged that the property in dispute had already been partitioned in between the parties in pursuance of registered partition deed dated 12.3.1973. Further it has also been alleged that now the plaintiff appellant has got no share in the property in dispute and he has already executed a sale deed/agreement on 4.6.1980 and damages were also claimed from the plaintiff/appellant for illegally occupying the property which was sold to them by the appellant and on which the plaintiff is in possession as a licensee. Both the courts below dismissed the suit of the plaintiff for partition and further alleged that the plaintiff/appellant has got no share in the property in dispute in view of the document dated 4.6.1980 and the trial court also awarded damages at the rate of Rs. 15 per day.
2. It has been argued by learned Counsel for the appellant that firstly the partition alleged to have taken place on 12.3.1973 was not the proper partition of the entire property and some of the property remained joint thereafter. He also argued that so called partition deed dated 12.3.1973 has not been properly proved in view of Section 90A Sub-section (2) of U.P. Amendment of Indian Evidence Act, that this partition deed was the basis of the defence and required to be proved according to Evidence Act. He also argued that defendants/respondents have alleged that the plaintiff/appellant transferred his share in the property in dispute vide document dated 4.6.1980. He stated that this is an agreement to sale and not sale deed. He also stated that this agreement to sale is also an unregistered deed. And by no stretch of reasoning this agreement may be called a sale deed and if it may be treated as sale deed then no right and title accrued in favour of the person in whose favour executed because it is an unregistered sale deed. And the judgments of the courts below are perverse to the effect that the appellant had no share in the property in dispute as he had already transferred his share to the defendants. That the courts below are also most unjustified to the extent of awarding the damages at the rate of Rs. 15 per day.
3. Learned Counsel for the respondents disputed the argument of the appellant counsel and he further argued that the suit for partition was not maintainable as the property in dispute was partitioned on 12.3.1973 by a registered partition deed prior to the institution of the suit. Learned Counsel also argued that plea of counter claim was also set up in the written statement and it has allegedly been that as the appellant had already transferred his share to the defendants in pursuance of a deed allegedly executed on 4.6.1980. And after this deed the possession of the appellant is permissive as a licencee and as the appellant has not vacated the property in dispute. Hence defendants are also entitled for damages. And he stated that the judgment of the trial court is justified to the extent of awarding the damage at the rate of Rs. 15 per day.
4. I have considered the facts and circumstance of the case and I think that this appeal may be disposed of at the admission stage. This is an undisputed fact that the share of the appellant in the property was to the extent of 1/3 share. But it has been alleged that the share of the appellant and other sharer was partitioned by registered deed dated 12.3.1973. Both the courts below have given a concurrent finding to the effect that the property in dispute was partitioned in the year 1973 and that this partition deed was acted upon and the parties occupied their share according to the partition deed. I am of the opinion that in the circumstance when the property in dispute had already been partitioned the suit for partition was not maintainable. And the judgments of the courts below are justified to the extent of dismissing the suit.
5. It is also material point to be decided that whether the appellant shall continue to have his 1/3 share of the property even after partition in view of the partition deed dated 12.3.1973. And whether the appellant transferred his share in favour of the defendants vide deed dated 4.6.1980. The learned Counsel for the appellant produced the copy of the so called agreement/sale deed dated 4.6.1980 allegedly executed by the appellant in favour of the respondents. And the defendants/respondents on the strength of this deed alleged that the appellant has transferred his 1/3 share to the other co-sharer, i.e., respondents. And both the Courts placed reliance on this sale deed dated 4.6.1980. It is a undisputed fact that a suit was filed by the appellant for partition of 1/3 share in the property. The courts below were expected to record a finding only to this fact that whether the partition took place earlier and if not whether the property is still joint of the parties. Although it has not been established that a counter claim was set up by the respondents in W S. but even then it cannot be decided in that partition suit that the appellant had already transferred his share in favour of the defendants. The reliance has been placed by the respondents regarding the transfer of the share by the appellant in favour dants on a deed allegedly executed by the appellant on deed dated 4.6.1980. In the end of this deed the word/agreement (Ikrarnama) has been mentioned. But in the entire body of this dead the executant meant to say that it is a sale deed. But if it may be treated either an agreement to sale or a sale deed then in both the conditions this document was compulsorily registrable.
6. I have directed the appellant to file the copy of this agreement in order to ascertain that whether it is registered or unregistered document and whether it is agreement to sale deed. Because the trial court commented in the judgment that this is a registered document. And the certified copy of this deed has been filed by the learned Counsel for the appellant and from perusal of this deed it is evident that it is unregistered deed and not properly stamped. If it may be treated an agreement to sale, or a sale deed or relinquishment deed of share then in all circumstance it must be registered. And it is a settled position of law that the document is compulsorily registrable and if the same has not been registered then no right and title accrued in favour of a person in whose favour the deed has been executed. And I am of the opinion that as this deed is unregistered hence it will not confer any right and title over the defendants. And if this document is overlooked and ignored then the position will be that the appellant shall be the sharer to the extent of 1/3 share in the property in dispute and this 1/3 share had been partitioned by the deed dated 12.3.1973. And the appellant is entitled to remain in possession of his 1/3 share ignoring this deed. The courts below have committed apparent illegality in placing reliance on unregistered document dated 4.6.1980. And the courts below have als6 committed illegality in awarding damages at the rate of Rs. 15 per day against the appellant for unauthorised possession. And as the deed is unregistered hence will not confer any title over the defendants/respondents. Hence they cannot be said the owner of 1/3 share of the appellant and the appellant cannot be liable to make any -payment towards the damages.
7. As there is concurrent finding of the courts below that the entire joint property was partitioned vide deed dated 12.3.1973. Hence it cannot be decided at this stage that the partition did not take place of the entire joint property of the parties. And when there is concurrent finding of fact the High Court in second appeal cannot interfere. And no substantial question of law is involved in this appeal.
8. For the reasons mentioned above; I am of the opinion that this second appeal is liable to be dismissed at this stage with a modification that the judgment of the courts below is erroneous and against the law so far as regarding conferring the title to the defendants on the basis of deed dated 4.6.1980 an unregistered document. The suit was filed for partition of the joint property and the courts below were expected to exercise the jurisdiction only to the factum of partition of the property instead of recording the finding for conferring title on the respondents on this basis of unregistered deed. The second appeal deserves to be disposed of accordingly.
9. The second appeal is disposed of finally at this stage. However the judgments of the courts below is modified to this extent that the appellant shall continue to be the owner in possession to the extent of 1/3 share in the property. And the order for awarding the damages at the rate of Rs. 15 per day is also set aside. But it is reiterated that the property in dispute had already been partitioned in the year 1973 by registered deed. Suit for partition is dismissed and the counter claim if any is also dismissed.