A.S. Nehra, J.
1. This appeal is directed against the judgment and decree dated November 28, 1989 passed by the Additional District Judge by which the appeal filed by the defendant appellant was dismissed and judgment and decree dated 28-11-1987 passed by the trial court (decreeing the suit of the plaintiff with costs) was upheld.
2. Briefly stated, the facts of the case, as given in the plaint are that plaintiff Vijay Kumar filed the suit for declaration to the effect that he is the owner in possession of the shop, shown in red colour and marked as ABCD in the site plan attached with the plaint and as detailed and described in the heading of the plaint and that the defendant has no right or title in the said shop and further that the order dated 6-1-1986 passed by the Sub Divisional Magistrate, Bala chaur, under Section 145, Code of Criminal Procedure, is illegal, null and. void and ineffective against the rights of the plaintiff in respect of the shop, in question. Consequential relief was claimed for permanent injunction restraining the defendants from interfering, in any manner, in the possession of the plaintiff
3. The plaintiff alleged that the shop, shown as red in site plan Exhibit PW-9/A also marked as ABCD therein and bounded as-East Zila Parishad Road ; West : shop of Vidya Kumar plaintiff ; North ; Shop of Bhagwan ; South : shop of Vidya Wati situated in the Abadi of Balachaur, was jointly owned by Vijay Kumar plaintiff and his uncle Tarlok Chand defendant. There was allegedly a partition between the parties of their properties and the vacant plot under the disputed shop had fallen to the share of Vijay Kumar plaintiff and a memorandum of partition dated 20-3-1984 was allegedly executed between the parties. There was a dispute between the parties regarding possession over the same, which was taken cognizance of by the Sub Divisional Magistrate, Balachaur, under Section 143 Crl. P.C. The Sub Divisional Magistrate, appointed Shri Mehar Chand Kanungo as Receiver who sealed the shop. Vide his orders dated 6 1.1986, the Sub Divisional Magistrate, Balachaur, found that before initiation of the proceedings under Section 145 Cr. P. C on 31.1.1985 defendant Tarlok Chand was in possession of the suit shop, and, accordingly, he ordered the official Receiver to hand over the possession of the disputed shop to defendant Tarlok Chand, against which order plaintiff Vijay Kumar filed a revision petition in the Hon'ble High Court, which was dismissed as withdrawn on 5 2.1987, consequent upon the institution of the present suit. Plaintiff Vijay Kumar has pleaded in his plaint that the plot underneath the suit shop was given to him during the partition of the properties between the parties and that he had also raised construction thereon. He has also pleaded that he had held an opening ceremony on 29.7.1985 of the disputed shop and that he had started a cloth business therein. He has further pleaded that the official Receiver had taken possession of the disputed shop from him. He has also pleaded that on 27.6.1986 when the construction of the shop in dispute was completed, the defendant alongwith his sons and one Rugha Ram came to the disputed shop and caused injuries to his brother, as a result of which first information report was also lodged in police station, Balachaur.
4. The suit was resisted by the defendant-appellant on the grounds that the site plan is incorrect ; that the plaintiff is estopped by his act and conduct from filing the present suit ; that the plaintiff is neither the owner nor in possession of the suit-shop and that the suit is not properly valued for the purposes of court fee and jurisdiction. On merits, he has pleaded that there was no family settlement and that even if any family settlement or arbitration awarded is proved, that was not acted upon by the plaintiff and, as such, it had become a nullity He had denied all other allegations of the plaint and has pleaded that he is the owner in possession of the same and that he had constructed the shop in dispute, and has started his business therein.
5. In replication the allegations made in the plaint were re iterated while those of the written statement were denied.
6. On the pleadings of the parties, the following issues were framed by the trial Court : --
1. Whether the plaintiff is in possession of the shop, in dispute, as alleged ?
2. Whether the site plan of the plaintiff is incorrect ?
3. Whether the plaintiff is estopped from filing this suit, as alleged ?
4. Whether the suit is not maintainable ?
5. Whether the suit is not properly valued for the purpose of Court-fee and jurisdiction ?
6. Relief.
The trial Court decided issue No. 1 in favour of the plaintiff and issues Nos. 2 to 5 against the defendants and decreed the suit of plaintiff with costs.
7. I have heard the learned counsel for the parties and have also perused the record.
8. Mr. P. K. Palli, learned counsel for the appellant, has not challenged the findings of the lower Court on issues Nos. 4 and 5. The learned counsel for the appellant has argued that there was no family settlement on March 20, 1984 and he has further submitted that if any such settlement, is proved, that was never acted upon.
9. The learned counsel for the appellant submitted that for the purpose of partition of the joint properties, the parties never made any reference to the arbitrators nor any valid award was ever given by the arbitrators and the learned lower Court wrongly relied upon the photostat copy of the award dated 20-3-1984 which was inadmissible in evidence as the existence of the original award has not been established nor the original award is forthcoming and more so the alleged award was not on proper stamp paper nor it was registered. He has further argued that until and unless award is on proper stamp paper and is registered, it is not admissible in evidence. In support of his argument he has relied upon Satish Kumar and Ors. v. Surinder Kumar, A.I.R. 1970 S. C. 833.
10. In the instance case, reference to the arbitrators for partition of the property dated 20.3.1984 has been proved as Ex PW 9/C. From the evidence brought on record it is revealed that the parties and others took into confidence their common relations and friends and through them got effected the partition of joint properties on 20.3.1984. it is in the statement of Shri Pawan Kumar, one of the arbitrators, as PW-14 that the matter was referred to them by the parties on 20.3,1984 and they partitioned the joint properties with the consent of the parties in the morning on that day at Balachaur and thereafter they went to Hoshiarpur where the said partition deed was reduced into writing and the photostat copy thereof is Ex. PW 14/A. Ex PW 9/B is the dissolution deed of the firm which was also executed on the same date, though it was given effect from November 9, 1983. the site in question was one of the properties jointly owned by the parties who had also a joint business in the name and style of M/S Nek Chand Tarlok Chand. Sh Vijay Kumar plaintiff deposed as PW 9 that the dispute between the parties was referred to their common friends and relatives, namely, Tarlok Lai Jain of Ludhiana, Mahavir Parshad of Nawanshahar and Pawan Kumar. it is worthmentioning that Pawan Kumar is the real brother of the father of the plaintiff and is the real brother of the defendant. He further deposed that the said persons assembled in the house of Pawan Kumar on 20.3.1984 and partitioned the joint properties between the parties. The plaintiff also stated that thereafter the parties alongwith the said arbitrator came to Hoshiarpur where the partition of the properties which had taken place in the morning was reduced into writing in the house of Narinder Kumar and thus the memo randum of partition came into existence. In the written statement, no doubt, the defendant denied the reference to arbitrators for the alleged partition dated 20-3-1984 but at the same time he also took up the plea that the award/family partition even if proved, is not binding upon him as it was not acted upon If the plea that the award is invalid as it was not acted upon is to prevail then impliedly the defendant admitted the existence of the award/family partition.
11. Regarding the admissibility of award/family partition dated 20.3.1984, the authorities relied upon by the learned counsel for the appellant are distinguishable on facts as in those cases the award was sought to be made the rule of the Court and thus, it was directly and substantially in issue. In the authorities relied upon by the learned counsel for the appellant, the award was not made the rule of the court as it was not registered. So, each case is to be decided on its own facts as in the present case the award is not before the court to make it the rule of the court but the court is to decide as to whether there had been any such award/family partition between the parties arrived at without the intervention of the Court and whether the possession of the site of the shop in question was given to the plain tiff. The plaintiff examined Mahavir Parshad as PW-1 who stated that the original award/memorandum of partition is not in his pos session. The plaintiff then examined Tarsem Lal who stated that the original award dated 20.3.1984 was handed over to Mahavir Parshad. He has also produced the photostat copy of the same as Ex. PW 14/A. So, the original award/memorandum of partition having not been produced by PW-1, the trial Court allowed secondary evidence thereof and as such the photostat copy Ex. PW-14/A was rightly admitted into evidence by the trial Court.
12. The learned counsel for the respondent submitted that from the evidence brought on the record it is amply established that the family settlement dated 20. 3.1984 was acted upon by the parties. The learned counsel for the respondent further submitted that the appellant got benefit under the said award/family partition and now he cannot back out from the same The learned counsel for the respondent rightly argued that the parties expressly reposed confidence in their common relatives and friends and they had decided to accept the decision of the arbitrators. Thus, the parties had asked the persons of common confidence to effect the partition between them and that the parties never intended to resort to any formal decision under the Arbitration Act and so it was not necessary for the parties to execute the formal reference or for the arbitrators to declare formal written award. The common friends and relatives of the parties effected the partition between the parties orally at Balachaur and thereafter they came to Hoshiarpur and reduced into writing a memorandum of past event, the photostat copy of which is Ex. PW14/A. The learned counsel also argued that such a document did not require registration and is admissible in evidence. The contention of the learned counsel finds support from the authorities cited as Munna Lal v. Suraj Bhan, A. I. R. 1975 S. C. 1119, Kale v. Deputy Director of Consolidation, A. I. R. 1976 S. C. 807 and Shyam Sunder v. Siya Ram, A. I. R. 1973 All. 382. It was held in Saliesh Chandra v. Bireshwar, A. I. R. 1930 Cal. 559, that an unregistered document can be relied upon in proof of admission of title. In Hirart Bibi v. Sohan Bibi, A. I. R. 1914 P. C. 44, the Privy Council observed that such a compromise Can in no sense of the word be an alienation of the property but a family settlement in which each party takes a share of the family property by virtue of the independent title which is to that extent and by way of compromise admitted by the other party. So, the photostat copy of the award/family settlement dated 20.3.1984 was rightly held to be admissible in evidence by the trial Court.
13. The learned counsel for the respondent referred to the copy of the statement of the appellant recorded before the Sub Divisional Magistrate which is Ex. PW 9/K and therein the appellant deposed that in the year 1983 they had appointed arbitrators, but he did not know on which date they had given their award. Nevertheless he admitted that the arbitrators has given their award and thereafter he got prepared a draft of Rs. 44,238 05 P on 30.3.1984. He further added that draft was not given to the plaintiff. He also admitted that the shop in question was purchased by him for Rs. 8,000/- and they had paid the sale price in equal share. He has stated that Vijay Kumar had refused to act upon the award of the arbitrators. He also admitted that the arbitrators had told them as to what decision they had given. The appellant in that statement had also admitted that he had joint business with Vijay Kumar and Narinder Kumar prior to 1983, but from 8.11.1983 onwards they had partitioned that business and now they do not have the business jointly. Thus, from the said statement, the existence of the award/family settlement with the intervention of the common friends and relatives stands admitted and further that it was acted upon as according to that award the appellant prepared a draft to had over the same to Vijay Kumar. Even the dissolution deed of the firm, Ex. PW 9/B was executed on the same day, that is, 20.3.1984 and it was given effect from November 9, 1983. That dissolution deed was also attested by Pawan Kumar and Tarsem Kumar. Even in the reply filed by the appellant in the proceedings under Section 145 Code of Criminal Procedure, it is specifically mentioned in para No. 2 that there used to be a dispute between Tarlok Chand, Vijay Kumar, Parphul and Abbey Kumar regarding their moveable and immovable properties and that arbitrators were appointed to resolve the dispute, but Vijay Kurnar did not act upon the award of the arbitrators and had made the same a nullity. So in those pleadings the appellant clearly admitted the reference to the arbitrators to resolve their dispute of movable and immovable properties and that the arbitrators had given the award. Therefore, Ex. PW14/A was rightly admitted by the trial Court as secondary evidence,
14. The appellant, Tarlok Chand as DW 1 denied to have purchased any stamp papar for writing the arbitration award. However, when confronted with the register of stamp vendor Shri Balkar Singh, he had to admit his signatures on the entry at Sr. No. 17191 dated 19.3.1984 regarding the purchase of stamp paper for writing arbitration award Undoubtedly, he added that he did not remember as to whether he had purchased the stamp or not, but that was a false statement to avoid the purchase of the stamp. Appellant had also filed a complaint in the Court of Judicial Magistrate, Garshanker wherein he made a statement on 31.10.1985, copy of which is Ex. P-18 and therein he deposed that the parties had joint immovable property though he further stated that they were separate in property and that no partition had ever taken place in respect of joint immovable property Nevertheless he deposed that there was no joint property between the parties. It reveals that the appellant had no regard for the sanctity of oath administered to him as he made contradictory statements in different breaths. So, as already observed above, from the evidence brought on record, the learned trial Court rightly admitted into evidence the photostat copy of the award/family settlement dated 20.8.1984.
15. The learned counsel for the appellant argued that there was award dated 20.3.1984 thereby settling the dispute between the parties regarding the joint properties then there could be no occasion for a subsequent agreement dated 17.1. 1986 Ex. PW9/X with the intervention of Shri Ram Kishan Kataria. On 17.1.1986, the present suit was already pending and the compromise with the intervention of Shri Ram Kishan Kataria was not attested by the Court and rather it was ignored. That agreement has been proved on the record simply to reveal that the ownership of the plaintiff of the site in question was admitted by the present appellant. Moreover, if there was any subsequent dispute between the parties after the award dated 20 3.1984 then there could be no bar on the part of the parties to resort to a fresh agreement. Thus, the agreement dated 17.1.1986 was neither recognised by the Court nor it made the previous award non-existent.
16. The learned counsel for the plaintiff-respondent argued that from the statement of the plaintiff and that of Pawan Kumar PW-14 it is established that the arbitrators gave an oral award in the morning and in the evening they reduced the memorandum into writing and thus the memorandum of partition did not require registration. The recitals of the memorandum reveal that the memorandum refers to the events which had earlier taken place. So the document, photostat copy of which is PW/14-A, did not require registration as it was a memorandum of partition.
17. Mr. P. K. Palli. learned counsel for the appellant argued that the alleged memorandum of partition was not acted upon so it remained non-existent. The said contention of the learned counsel is equally devoid of force. The partition between the parties was of the joint business, two taurs and a truck. It is hardly disputed by the parties that their joint business was partitioned vide dissolution deed dated 20 3.1984. It is equally admitted case of the parties that at present they are carrying on their separate business. The truck No. PJD-507 had fallen to the share of the appellant. In his cross-examination the appellant as DW-1 shattered his own case that the truck had not fallen to his share, in fact, the truck was purchased by taking loan in the name of Vijay Kumar. The appellant denied to have received Rs. 768 75p. from the truck union, Balachaur, towards the payment of truck on 30.11.1983 but in further cross-examination when he was confronted with his signatures in the register of the truck union, he had to admit the receipt of above amount, though he hastened to add that he had given the amount to Vijay Kumar. No such receipt for payment to Vijay Kumar is forthcoming. He even denied the payment of Rs. 18,000/- on 21.3.1984 to the Bank towards the loan of the truck through his son Perphul Kumar and similarly he denied about return of loan of Rs. 6,000/- on 6.12.1983 through his son Varinder Kumar. In the award/memorandum of partition dated 20.3.1984 it was mentioned that the truck was given to the defendant/appellant. So, that way it is proved on the record that the said memorandum of the partition/award had been acted upon.
18. The plot in question through the document dated 20.3.1984 copy of which is Exhibit PW-14/A, was given in partition to Vijay Kumar who deposed as PW-9 that he constructed the shop on the taur in question. On the other hand the appellant claimed that it was he who had constructed the shop in question and for that purpose he gave his own statement as DW-1 and he also examined DW-2 who stated that the shop was constructed by the appellant. DW-3 is a mason who deposed that he alongwith Lal Singh and four labourers had constructed the shop in question at the instance of the appellant. However, DW-3 did not remember the date, month or the year of such construction. No further material was brought on record by the appellant to prove that it was he who had purchased the material for the construction of the shop nor any such record is forthcoming to reveal that the appellant had shown to have incurred expenses on the shop in dispute in his income tax return. On the other hand, Vijay Kumar has shown the expenditure on the shop in his income tax return for the year 1985-86.
19. Plaintiff had examined Darshan Singh PW-4 who deposed that he had sold shutter fitted on the shop in question to Vijay Kumar plaintiff vide receipt Exhibit P-l for Rs. 1701.60 P. His statement was assailed on behalf of the appellant on the ground that the witness could not produce counterfoil of the receipt but the witness stated that despite his efforts he could not trace the counter foil of the receipt and thus failed to produce it in the Court On the other hand, the appellant failed to prove by any cogent evidence that he purchased the shutter of the shop in question from Nawashahar. No receipt for the purchase of shutter was brought on record by the appellant till he was examined in the Court as DW-1 on 27.10.1937, though the suggestion was put to PW-4 in his cross examination regarding the said purchase of said shutters on 20.4 1986. Even in that suggestion it was not suggested as to from which shop the shutter was purchased by the appellant. The receipt mark A produced by the appellant was rightly discarded by the trial Court as it was not relied upon by him. Even the author of the said receipt was not produced by the appellant. So the receipt Exhibit P-l executed by PW-4 leaves no doubt that the shutter for the shop in question was purchased by Vijay Kumar from PW4 who had fitted the shutter in the shop on 3.7.1985. The plaintiff also examined PW 5 Shri Swaran Singh who proved the receipt Ex. P. 2 dated 20.7.1985 for Rs. 8,000/- towards the payment to the mason Hari Singh who had constructed the shop in dispute.
It is true that Hari Singh was not examined but the receipt stands proved from the statement of Swaran Singh PW 5 who is not proved to be, in any way, interested in the plaintiff or inimical towards the appellant. The learned counsel for the appellant argued that Swaran Singh deposed that when he scribed the receipt Ex. P-2 on 20.7.1985 the shutter was not fitted in the shop and thus the learned counsel submitted that the testimony of PW4 that he fitted shutter on 3.7.1985 stands shattered. The contention of the learned counsel is devoid of force because Swaran Singh in his cross examination deposed that he did not see the shop in question on 20.7.1985 when he scribed the receipt Ex. P-2. So from the statement read as a whole, it cannot be construed that on 20.7.1985 the shutter was not fitted in the shop in question. From the receipt Ex-P-2 and from the statement of the plaintiff it is proved that it was Hari Singh who had constructed the shop at the instance of the plaintiff The appellant claimed that he got the shop constructed through his son-in-law of Jagraon but for the best reasons known to him the appellant did not examine his sonin-law. The appellant had taken adjournments to produce Lai Singh, mason but he was never produced in the trial Court DW-3 Balbir Singh belongs to Kot-kapura District Faridkot and be doposed that he alongwith Lal Singh has constructed the shop in the dispute. Even DW-3 appears to be procured witness to fill up the lacuna in the evidence of the appellant because Lal Singh has been withheld.
20. The plaintiff gave details of the expenses incurred by him on the construction of the shop in question, while on the other hand, appellant as DW-1 has failed to depose as where from the bricks and the cement were purchased for the construction of the shop. He even failed to give the quantity thereof. Plaintiff as PW-9 stated that he constructed the shop in dispute and his statement is further corroborated from the statements of PW 4 and PW-5 who proved the receipts Ex. P-1 and P-2 respectively The plaintiff even deposed that he had celebrated the Mahurat of the shop in dispute on 29.7.1985. His statement finds corroboration from the statement of Subhash Chander PW 10 and Shri Abhidoot as PW-11. Even the photographs of the Mahurat were brought on the record by PW-15 Shri Amarjeet Singh. Those photographs are marked 'A' to D' and the negatives thereof are marked 'E' to 'H' This witness of course slated that the photographs were taken by his servant whose address he could not give. According to him his name was Ram Lal and he belonged to U.P. No such person has been produced on the record nor his whereabouts are known even to PW-15. PW-15 was examined having been declared hostile and in such cross-examination he admitted that the endorsement on the back of the photographs Ex. PW 15/A to Ex. P 15/F are in his handwriting. The photographer tried to help the appellant by denying to have taken the photographs at the time of Mahurat but he could not wriggle out from his endorsement on the back of the said photographs. In the said photographs 'Vijay Di Hatti' is written and thus they are connected with the shop in dispute and more so when the appellant has not led any evidence as to which other shop the photographs related to. From the statements of PW, 9, 10 and 11 and the said photographs it is amply established that the Mahurat of the shop in question was celebrated by the plaintiff who had constructed the shop.
21. The learned counsel for the appellant has also argued that the lower Court wrongly relied upon the documents Ex. P-3. Ex P-3 is dated 6.7.1984 and it was proved by Shaminder Pal deed-writer as PW-6 who also deposed that the agreement was entered in his register and the copies of the entries were Ex. P-4 and P-5. It is in the statement of the plaintiff that the southern wall of the shop in question is common with that of Vidya wati with whom the agreement Ex. P-3 regarding the jointness of the wall was written on 6.7.1984. The plaintiff also examined PW 6 as scribe of Ex. P-3 in addition to Shri Ram Parkash, attorney of his wife Vidya Wati, as PW 12 in support of the agreement Ex. P-3 On 6.7.1984 there was no dispute between the parties, so there could be no occasion for the plaintiff to have collusive agreement with Vidya Wati at that time. The said agreement also lends strength to the contention of the plaintiff that it was he who had constructed the shop in dispute. On the other hand, the appellant failed to prove any agreement with Vidya Wati though he stated that he had construced the wall jointly with Vidya Wati. So his statement was rightly repelled by the lower Court.
22. The question of possession of the plaintiff can be determined from another angle as well. As per the order of the Sub Divisional Magistrate, Balachaur, the Official Receiver took the keys of the shop in question from the plaintiff. Undoubtedly, the appellant deposed that before the official receiver in the proceedings under Section 145 Cr. P.C. took the possession of the shop in question, during the intervening night his locks were changed. The conduct of the appellant was really very strange in allowing the plaintiff to change the locks of the shop when proceedings under Section 145 Cr. P.C. were already pending. Moreover, the appellant never lodged any report with the police that the plaintiff had changed his locks So, it is amply established on the record that the office Kanungo as receiver in the proceedings under Section 145 Cr. P. C took over the keys of the shop, in question, from Vijay Kumar plaintiff. Moreover the plaintiff produced the list of cloth lying in the disputed shop in the Court of Sub Divisional Magistrate but, on the other hand, the appellant failed to produce any such list in the Court. In his application, the appellant alleged before the Sub Divisional Magistrate that the shop was lying vacant, but it is amply stabilished on the record that in fact the shop contained cloth which was ultimately sold by auction by the Receiver for Rs. 10,240/-. During the pendency of the case in the Civil Court Shri Rakesh Kumar, Advocate was appointed Receiver and as per the order of the Court he took over the possession of the shop from the Kanungo During those civil proceedings the plaintiff applied to the Court that the cloth lying in the shop may be disposed of as it was perishable nature. Even that application was opposed by the appellant and it reveals that he was not interested in saving the cloth lying in the shop. Had he actually been the owner of that cloth lying in the shop, in dispute, he himself must have made such application before the Court to save the same or to dispose it of.
23. It is proved on the record that Perphul Kumar son of the appellant, had filed a complaint against the plaintiff and two others alleging that on 27.6.1985 at about 3 p.m. he and Rugha Ram were beaten by the plaintiff, Abhey Kumar and two others, and that his father and Vijay Kumar accused had purchased the taur jointly at Balachaur and the accused started forcibly constructing a shop on that taur and the accused were objected to by his father and, so, the accused had a grudge against them. The complaint is dated 2.7.1985 and its copy is Exhibit PW-8/A. In that case, Shri Perphul Kumar son of the appellant made statement on 10-7-1985 and the copy thereof is Exhibit PW-8/B. That statement is per se admissible, being a certified copy of the public record. In that complaint, the son of the appellant admitted that on 27 6.1985 Vijay Kumar and others, who were accused in that complaint, forcibly started constructing the shop, in question. The appellant showed his ignorance about the said complaint filed by his son and the learned counsel for the appellant also argued that the contents of the complaint do not bind his client. There is nothing on the record to reveal that Perphul Kumar and his father are separate or that they had strained relations inter se. From the said complaint and from the Statement of Perphul Kamar, it is proved that the plaintiff had constructed the shop, in dispute, on 27.6.1935. The appellant even failed to depose the length of the construction of the shop while, on the other hand, the plaintiff could give such details in his statement. The expenses on the construction of the shop have been shown by the plaintiff in his income tax return for the year 1985-86 (Ex. PW9/D). From the said evidence it is conclusively proved that, during the partition, the plot underneath the shop, in question, had fallen to the share of the plaintiff and it is he who had constructed the shop and he was in possession of the same when the possession was taken over by the official receiver as per the order of Sub Divisional Magistrate.
24. In view of the above mentioned discussion, there is no merit in this appeal and the same is dismissed with costs, which are assessed at. Rs. 5,000/.