[Cites 4, Cited by 0]
Uttarakhand High Court
Dinesh Chandra Joshi vs Anurag Joshi on 22 December, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 170 of 2016
Dinesh Chandra Joshi. ...........Appellant.
Versus
Anurag Joshi
and others. ........Respondents
Present:
Mr. V.K. Kaparwan, learned counsel for the appellant.
Mr. Siddharath Singh, learned counsel for the respondents.
Hon'ble Rakesh Thapliyal, J.
1. A suit no. 07 of 2010 was filed by the plaintiffs /
respondents for partition against the defendant / appellant on
the ground that family settlement dated 28.08.2004 cannot be
read in evidence since the same is not registered and is not
admissible into evidence under Section 49 of the Registration
Act.
2. On the contrary, defendant's case was that admittedly,
family settlement dated 28.08.2004 was signed by the plaintiffs,
therefore, once they signed the family settlement, they cannot
dispute the same that the family settlement is not admissible. In
fact, partition suit was filed by the respondents / plaintiffs in
respect of a building raised over the land, which in fact is a
nazul land. Family settlement is on record and it appears from
the family settlement that a piece of nazul land was given on
lease wherein construction was raised, however, uptill date no
free hold rights has been given. Thus, the construction was
raised admittedly on a nazul land, which is owned by the State
Government.
3. Mr. Siddharath Singh, learned counsel for the
respondents / plaintiffs argued that partition suit was filed
only in respect of the building which was raised over the nazul
land and no relief was sought against the State Government,
therefore, State was not impleaded as party defendant. He
further submits that family settlement was disputed by the
plaintiffs since there is no disclosure about the share of the
married sisters.
4. Mr. Siddharath Singh, learned counsel for the
respondents, in support of his arguments has placed reliance on
the judgment of this Court passed in the case of Smt. Shashi
Agarwal Vs. Addl. Collector (Finance and Revenue) / Dy.
Director of Consolidation 2014 (1) UD 189, particularly, by
placing reliance to paragraph 11, which is being reproduced
herein under:
"11 Sri Pradeep Kant, the learned Senior
Advocate, has placed reliance on the judgment of
the Apex Court in the case of Kale & others vs.
Deputy Director of Consolidation, reported in
1976 AIR 807, which judgment has also been relied
upon by the Consolidation Officer. On the basis of
the said judgment, the learned Senior Advocate has
submitted that the oral family settlement, which
has been reduced in writing and, thereafter, Chas
been recognized; is not needed to be registered and
the learned Deputy Director of Consolidation has,
thus, committed manifest error of law."
5. Mr. Singh has further placed reliance on the judgment of
Hon'ble Supreme Court in the case of K.B. Saha and sons Pvt.
Ltd. Vs. Development Consultant Ltd. (2008) 8 SCC 564,
particularly, by placing reliance to paragraph 34, which is also
being reproduced herein under:
"34 From the principles laid down in the various
decisions of this Court and the High Courts, as
referred to hereinabove, it is evident that:
1. A document required to be registered, if
unregistered is not admissible into evidence under
Section 49 of the Registration Act.
2. Such unregistered document can however be
used as an evidence of collateral purpose as
provided in the proviso to Section 49 of the
Registration Act.
3. A collateral transaction must be independent of,
or divisible from, the transaction to effect which the
law required registration.
4. A collateral transaction must be a transaction
not itself required to be effected by a registered
document, that is, a transaction creating, etc. any
right, title or interest in immovable property of the
value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for
want of registration, none of its terms can be
admitted in evidence and that to use a document
for the purpose of proving an important clause
would not be using it as a collateral purpose."
6. Be that as it may, admittedly, building was constructed
over the land owned by the State Government,
however, the State was not impleaded defendant in the suit,
therefore, to examine whether the suit was maintainable
without impleading the State as defendant. Secondly, there is
no dispute that the family settlement was signed by the
plaintiffs. These two aspects goes to the root of the matter,
hence, requires deep scrutiny.
7. In such view of the matter, the instant second appeal is
admitted on the following substantial questions of law:
"i. Whether the partition suit in respect of the
building constructed over the nazul land owned by
the State is maintainable without impleading State
as a party defendant?
ii. Whether plaintiff can dispute the admissibility of
the family settlement in terms of Section 49 of the
Registration Act, particularly, when they themselves
were signatories to the family settlement?"
8. To examine the substantial question of law no. 1, learned
counsel for the appellant is permitted to move appropriate
application for impleading State as one of the respondents
within a week.
9. Summon the trial court record.
10. List in the week commencing 23.02.2026.
11. In the meantime, plaintiffs / respondents are directed not
to create any third party interest over the land in question.
(Rakesh Thapliyal, J.)
22.12.2025
SKS
