Bishamber Lal Vs. Rajinder Parshad and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/903849
SubjectCivil
CourtHimachal Pradesh High Court
Decided OnMay-19-2010
Judge V.K. Ahuja, J.
AppellantBishamber Lal
RespondentRajinder Parshad and ors.
DispositionAppeal dismissed
Cases ReferredSant Ram Nagina Ram v. Daya Ram Nagina Ram and Ors.
Excerpt:
- v.k. ahuja, j.1. this is a regular second appeal filed by the appellant under section 100 of the cpc read with section 20 of the himachal courts act, 1972, against the judgment and decree, dated 4.8.2005, passed by the learned additional district judge (fast track court), shimla, setting aside the judgment and decree of the court of learned sub judge, court no. v dated 27.9.2000, vide which he had decreed the suit of the plaintiff for possession of one room.2. briefly stated the facts of the case are that the plaintiff filed a suit for possession of one room alleging that he was the owner of the building no. 438 alongwith other property at kanlog, which he had inherited from his late father shri ghungar mall, who died in the year 1977. it was alleged that after the death of the father of the plaintiff, there was a family settlement between the plaintiff and his brothers shri rajinder prasad, defendant no. 3, and vijay kumar, which was effected in between the parties through a memo of partition executed on 25.3.1981. it was alleged that the premises in occupation of defendant no. 1 as tenant on monthly rent of rs. 30/- fell in the share of the plaintiff and accordingly defendant no. 1 became the tenant of the plaintiff and had been paying the rent regularly to the plaintiff. defendant no. 1 vacated the premises i.e. one room in his occupation, as tenant, but failed to hand over the possession to the plaintiff. defendant no. 1 surrendered the possession of the premises and handed over the keys to defendant no. 3 illegally, without the consent and knowledge of the plaintiff. the plaintiff filed eviction petition under section 14 of the h.p. urban rent control act against defendant no. 1 on the ground of non-payment of rent as well as on the ground that defendant no. 1 had shifted to his own residence. a statement was made by defendant no. 1 through his counsel before the rent controller that defendant no. 1 had handed over the possession to defendant no. 3 and thereafter defendant no. 3 had inducted defendant no. 2 as a tenant in the premises. it was alleged that defendant no. 1 had no right to hand over the possession of the premises to defendant no. 3 and in view of the family settlement, dated 25.3.1981, the position of defendant no. 2 is that of trespasser. it was alleged that defendant no. 3 has been realizing use and occupation charges from defendant no. 2 at the rate of rs. 250/- per month to which he had no right and as defendant no. 2 has failed to hand over the possession to the plaintiff, hence the suit for possession filed by the plaintiff.3. defendant no. 1 pleaded that he had been paying rent to the plaintiff being one of the heirs of late shri ghungar mall. he handed over the possession of the premises to one of the legal heir i.e. shri rajinder prasad, defendant no. 3. he further pleaded that he was not bound to hand over the vacant possession to the plaintiff since all the three brothers were legal heirs of late shri ghungar mall and were duly competent to receive the vacant possession which was handed over to defendant no. 3. defendant no. 2 pleaded that he was inducted as a tenant by defendant no. 3. defendant no. 3 pleaded that the building is jointly owned and possessed by the plaintiff and their sisters. it was denied that the plaintiff was owner of the building. it was also denied that there was a family settlement in between the legal heirs of the deceased ghungar mall or a memo of partition was executed on 25.3.1981, since the family settlement was not consented by the sisters of the plaintiff and was never acted upon also. defendant no. 1 was a tenant of the joint family and had been paying rent to the plaintiff and at times to defendant no. 3 and as such the suit is liable to be dismissed.4. on the pleadings of the parties the following issues were settled by the learned trial court:1. whether the plaintiff is owner of the property in dispute? opp2. whether the defendant is the tenant of the plaintiff? opp3. whether the defendant no. 1 has sub-let the premises to defendant no. 2 without the consent of the plaintiff? opp4. whether the suit is not maintainable? opd 1&25. whether the plaintiff is estopped from filing the present suit as alleged? opd6. whether the plaintiff has no locus standi to file the present suit? opd7. whether the suit is bad for non-joinder of the necessary parties? opd8. whether the suit is not properly valued for the purpose of court fee? opd9. relief.5. the parties led their evidence and the learned trial court vide its judgment decided all the issues in favour of the plaintiff and as against the defendants and consequently decreed the suit of the plaintiff.6. on appeal, those findings were reversed and the suit of the plaintiff was dismissed and accordingly the judgment and decree passed by the learned sub judge was set aside.7. i have heard the learned counsel for the parties and have gone through the record of the case.8. the submissions made by the learned counsel for the appellant were that the property in question had fallen to the share of the plaintiff in family arrangement who had been receiving the rent from defendant no. 1 and as such the possession ought to have been delivered to the plaintiff. it was also submitted that defendant no. 1 had wrongly given the possession to defendant no. 3, who illegally gave the premises to defendant no. 2 and since the possession of defendant no. 2 was illegal, the plaintiff was rightly held entitled to the possession by the learned trial court. it was further submitted that the property already stood divided and document ext.pw-1/a, family arrangement, was only a memorandum which was not compulsorily required to be registered. even if it was registerable or required compulsory registration, still it could be looked into for collateral purposes and as such the findings of the learned trial court are liable to be restored.9. on the other hand, it was submitted by the learned counsel for respondent no. 1 that the partition deed ext.pw-1/a was never given effect to since the sisters were not party to it. it was also submitted that the said document required compulsory registration. it was further submitted that defendant no. 2 had been paying rent to defendant no. 3 from the very beginning and he had been inducted as a tenant by defendant no. 3 after the possession had been handed over to defendant no. 3. thus, it was submitted that there is no merit in the appeal filed by the appellant which is liable to be dismissed accordingly.10. on appraisal of the record of the case, it is very much clear that the property in question belonging to shri ghungar mall, who died, as per the pleadings of the parties, in the year 1977. the partition deed ext.pw-1/a was entered into in between the parties on 25.3.1981. the signatories to this document are three sons of the deceased, namely, plaintiff, defendant no. 3 and shri vijay kumar. it is not disputed by the parties that apart from the three sons, the property in question of the deceased ghungar mall was inherited by his two daughters one of whom died in the year 1984. once the property was inherited by three sons and two daughters of the deceased ghungar mall, there could not have been any partition or family settlement in between the three brothers, in the absence of their two sisters. the plaintiff bishamber lal as pw-1 has clearly admitted that the partition was effected in between the three brothers, but he also stated that it was effected in presence of the sisters, who were not made a witness to the same. thus, it is clear that the two sisters were not party to the partition deed, allegedly executed in between the three sons of the deceased ghungar mall.11. coming to the document ext.pw-1/a, i do not understand as to how the document was proved in the statement of the plaintiff, who appeared as pw-1, since it was a certified copy of the photocopy proved in evidence. it was proved in the statement of the plaintiff as pw-1 and a perusal of the same shows that there is no mention that the original document was also produced in the court when the certified copy of ext.pw-1/a was exhibited in the statement of the plaintiff. in the absence of the original document having been produced, the document in question could not have been relied upon and acted upon by the parties and, therefore, it could not have been the basis for passing of the decree by the learned trial court. once the property was not owned exclusively by the three brothers, but it was also owned by their two sisters, no partition could be effected in the absence of the daughters of late shri ghungar mall, who were also the legal heirs of the deceased. moreover, a perusal of ext.pw-1/a, wrongly admitted in evidence, also shows that it was not a memo of partition already effected in between the parties, as sought to be argued by the learned counsel for the appellant, but it was the partition in between them which could not have been valid due to the non-registration or in the absence of the two sisters of the plaintiff being party to the same. the memo was not required to be registered when the parties had already entered into a division of the property and it was only a document prepared as a proof or was required to be used for collateral purposes.12. the learned counsel for the appellant had relied upon the decision in kale and ors. v. deputy director of consolidation and ors. : air 1976 supreme court 807. a perusal of the said decision shows that the family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family. the observations made in paras 10 and 25 are relevant, which are being reproduced below:the family arrangement may be even oral in which case no registration is necessary. the registration would be necessary only if the terms of the family arrangement are reduced into writing. here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. in such a case the memorandum itself does not create or extinguish any rights in immovable properties and is, therefore, not compulsorily registrable.13. however, in the present case, the document ext.pw-1/a does not contain the terms and recitals of the family arrangement already effected in between the parties but the terms of the arrangement have been reduced into this writing and therefore, the document in question was compulsorily registerable.14. the decision in sant ram nagina ram v. daya ram nagina ram and ors. : air 1961 punjab 528, deals with the rights of the co-owners and their liabilities, which primarily deals with the question of grant of an injunction in favour of a co-owner and, therefore, is of no help to the plaintiff.15. a perusal of the evidence also shows that the plaintiff had been receiving rent at times and at times, it was received by defendant no. 3, who received the possession and the possession of defendant no. 2 is there on the basis of creation of tenancy by defendant no. 3 i.e. one of the co-owners. once there has been no family settlement in between the parties and no partition has been effected in between the legal heirs of the deceased ghungar mall, the receiving of rent by one of the co-owners or creation of tenancy does not make him the exclusive owner of the property in question until and unless there is a partition in between the parties. the document in question could not have been acted upon in the absence of proper proof or registration and that was made the basis by the learned trial court for decreeing the suit of the plaintiff, which findings are not sustainable in the eye of law. the learned trial court had come to a wrong conclusion that the defendant was the tenant of the plaintiff and rather the tenancy was created by the previous owner and after his death, all his legal heirs became owner and as such the plaintiff had failed to prove the exclusive ownership rights of the suit property in question. the findings of the learned trial court decreeing the suit of the plaintiff were rightly set aside by the learned first appellate court, which findings do not call for an interference by this court.16. in view of the above discussion, i accordingly hold that there is no merit in the appeal filed by the appellant. the evidence in question has been properly appreciated by the learned first appellate court and there is no necessity of reappraisal of the whole evidence, suffice to say that the findings recorded by the learned fist appellate court are based upon the correct appreciation of evidence and as such, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. however, the parties are left to bear their own costs.
Judgment:

V.K. Ahuja, J.

1. This is a regular second appeal filed by the appellant under Section 100 of the CPC read with Section 20 of the Himachal Courts Act, 1972, against the judgment and decree, dated 4.8.2005, passed by the learned Additional District Judge (Fast Track Court), Shimla, setting aside the judgment and decree of the court of learned Sub Judge, Court No. V dated 27.9.2000, vide which he had decreed the suit of the plaintiff for possession of one room.

2. Briefly stated the facts of the case are that the plaintiff filed a suit for possession of one room alleging that he was the owner of the building No. 438 alongwith other property at Kanlog, which he had inherited from his late father Shri Ghungar Mall, who died in the year 1977. It was alleged that after the death of the father of the plaintiff, there was a family settlement between the plaintiff and his brothers Shri Rajinder Prasad, defendant No. 3, and Vijay Kumar, which was effected in between the parties through a memo of partition executed on 25.3.1981. It was alleged that the premises in occupation of defendant No. 1 as tenant on monthly rent of Rs. 30/- fell in the share of the plaintiff and accordingly defendant No. 1 became the tenant of the plaintiff and had been paying the rent regularly to the plaintiff. Defendant No. 1 vacated the premises i.e. one room in his occupation, as tenant, but failed to hand over the possession to the plaintiff. Defendant No. 1 surrendered the possession of the premises and handed over the keys to defendant No. 3 illegally, without the consent and knowledge of the plaintiff. The plaintiff filed eviction petition under Section 14 of the H.P. Urban Rent Control Act against defendant No. 1 on the ground of non-payment of rent as well as on the ground that defendant No. 1 had shifted to his own residence. A statement was made by defendant No. 1 through his counsel before the Rent Controller that defendant No. 1 had handed over the possession to defendant No. 3 and thereafter defendant No. 3 had inducted defendant No. 2 as a tenant in the premises. It was alleged that defendant No. 1 had no right to hand over the possession of the premises to defendant No. 3 and in view of the family settlement, dated 25.3.1981, the position of defendant No. 2 is that of trespasser. It was alleged that defendant No. 3 has been realizing use and occupation charges from defendant No. 2 at the rate of Rs. 250/- per month to which he had no right and as defendant No. 2 has failed to hand over the possession to the plaintiff, hence the suit for possession filed by the plaintiff.

3. Defendant No. 1 pleaded that he had been paying rent to the plaintiff being one of the heirs of late Shri Ghungar Mall. He handed over the possession of the premises to one of the legal heir i.e. Shri Rajinder Prasad, defendant No. 3. He further pleaded that he was not bound to hand over the vacant possession to the plaintiff since all the three brothers were legal heirs of late Shri Ghungar Mall and were duly competent to receive the vacant possession which was handed over to defendant No. 3. Defendant No. 2 pleaded that he was inducted as a tenant by defendant No. 3. Defendant No. 3 pleaded that the building is jointly owned and possessed by the plaintiff and their sisters. It was denied that the plaintiff was owner of the building. It was also denied that there was a family settlement in between the legal heirs of the deceased Ghungar Mall or a memo of partition was executed on 25.3.1981, since the family settlement was not consented by the sisters of the plaintiff and was never acted upon also. Defendant No. 1 was a tenant of the joint family and had been paying rent to the plaintiff and at times to defendant No. 3 and as such the suit is liable to be dismissed.

4. On the pleadings of the parties the following issues were settled by the learned trial Court:

1. Whether the plaintiff is owner of the property in dispute? OPP

2. Whether the defendant is the tenant of the plaintiff? OPP

3. Whether the defendant No. 1 has sub-let the premises to defendant No. 2 without the consent of the plaintiff? OPP

4. Whether the suit is not maintainable? OPD 1&2

5. Whether the plaintiff is estopped from filing the present suit as alleged? OPD

6. Whether the plaintiff has no locus standi to file the present suit? OPD

7. Whether the suit is bad for non-joinder of the necessary parties? OPD

8. Whether the suit is not properly valued for the purpose of court fee? OPD

9. Relief.

5. The parties led their evidence and the learned trial Court vide its judgment decided all the issues in favour of the plaintiff and as against the defendants and consequently decreed the suit of the plaintiff.

6. On appeal, those findings were reversed and the suit of the plaintiff was dismissed and accordingly the judgment and decree passed by the learned Sub Judge was set aside.

7. I have heard the learned Counsel for the parties and have gone through the record of the case.

8. The submissions made by the learned Counsel for the appellant were that the property in question had fallen to the share of the plaintiff in family arrangement who had been receiving the rent from defendant No. 1 and as such the possession ought to have been delivered to the plaintiff. It was also submitted that defendant No. 1 had wrongly given the possession to defendant No. 3, who illegally gave the premises to defendant No. 2 and since the possession of defendant No. 2 was illegal, the plaintiff was rightly held entitled to the possession by the learned trial Court. It was further submitted that the property already stood divided and document Ext.PW-1/A, family arrangement, was only a memorandum which was not compulsorily required to be registered. Even if it was registerable or required compulsory registration, still it could be looked into for collateral purposes and as such the findings of the learned trial Court are liable to be restored.

9. On the other hand, it was submitted by the learned Counsel for respondent No. 1 that the partition deed Ext.PW-1/A was never given effect to since the sisters were not party to it. It was also submitted that the said document required compulsory registration. It was further submitted that defendant No. 2 had been paying rent to defendant No. 3 from the very beginning and he had been inducted as a tenant by defendant No. 3 after the possession had been handed over to defendant No. 3. Thus, it was submitted that there is no merit in the appeal filed by the appellant which is liable to be dismissed accordingly.

10. On appraisal of the record of the case, it is very much clear that the property in question belonging to Shri Ghungar Mall, who died, as per the pleadings of the parties, in the year 1977. The partition deed Ext.PW-1/A was entered into in between the parties on 25.3.1981. The signatories to this document are three sons of the deceased, namely, plaintiff, defendant No. 3 and Shri Vijay Kumar. It is not disputed by the parties that apart from the three sons, the property in question of the deceased Ghungar Mall was inherited by his two daughters one of whom died in the year 1984. Once the property was inherited by three sons and two daughters of the deceased Ghungar Mall, there could not have been any partition or family settlement in between the three brothers, in the absence of their two sisters. The plaintiff Bishamber Lal as PW-1 has clearly admitted that the partition was effected in between the three brothers, but he also stated that it was effected in presence of the sisters, who were not made a witness to the same. Thus, it is clear that the two sisters were not party to the partition deed, allegedly executed in between the three sons of the deceased Ghungar Mall.

11. Coming to the document Ext.PW-1/A, I do not understand as to how the document was proved in the statement of the plaintiff, who appeared as PW-1, since it was a certified copy of the photocopy proved in evidence. It was proved in the statement of the plaintiff as PW-1 and a perusal of the same shows that there is no mention that the original document was also produced in the court when the certified copy of Ext.PW-1/A was exhibited in the statement of the plaintiff. In the absence of the original document having been produced, the document in question could not have been relied upon and acted upon by the parties and, therefore, it could not have been the basis for passing of the decree by the learned trial Court. Once the property was not owned exclusively by the three brothers, but it was also owned by their two sisters, no partition could be effected in the absence of the daughters of late Shri Ghungar Mall, who were also the legal heirs of the deceased. Moreover, a perusal of Ext.PW-1/A, wrongly admitted in evidence, also shows that it was not a memo of partition already effected in between the parties, as sought to be argued by the learned Counsel for the appellant, but it was the partition in between them which could not have been valid due to the non-registration or in the absence of the two sisters of the plaintiff being party to the same. The memo was not required to be registered when the parties had already entered into a division of the property and it was only a document prepared as a proof or was required to be used for collateral purposes.

12. The learned Counsel for the appellant had relied upon the decision in Kale and Ors. v. Deputy Director of Consolidation and Ors. : AIR 1976 Supreme Court 807. A perusal of the said decision shows that the family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family. The observations made in paras 10 and 25 are relevant, which are being reproduced below:

The family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and is, therefore, not compulsorily registrable.

13. However, in the present case, the document Ext.PW-1/A does not contain the terms and recitals of the family arrangement already effected in between the parties but the terms of the arrangement have been reduced into this writing and therefore, the document in question was compulsorily registerable.

14. The decision in Sant Ram Nagina Ram v. Daya Ram Nagina Ram and Ors. : AIR 1961 Punjab 528, deals with the rights of the co-owners and their liabilities, which primarily deals with the question of grant of an injunction in favour of a co-owner and, therefore, is of no help to the plaintiff.

15. A perusal of the evidence also shows that the plaintiff had been receiving rent at times and at times, it was received by defendant No. 3, who received the possession and the possession of defendant No. 2 is there on the basis of creation of tenancy by defendant No. 3 i.e. one of the co-owners. Once there has been no family settlement in between the parties and no partition has been effected in between the legal heirs of the deceased Ghungar Mall, the receiving of rent by one of the co-owners or creation of tenancy does not make him the exclusive owner of the property in question until and unless there is a partition in between the parties. The document in question could not have been acted upon in the absence of proper proof or registration and that was made the basis by the learned trial Court for decreeing the suit of the plaintiff, which findings are not sustainable in the eye of law. The learned trial Court had come to a wrong conclusion that the defendant was the tenant of the plaintiff and rather the tenancy was created by the previous owner and after his death, all his legal heirs became owner and as such the plaintiff had failed to prove the exclusive ownership rights of the suit property in question. The findings of the learned trial Court decreeing the suit of the plaintiff were rightly set aside by the learned First Appellate Court, which findings do not call for an interference by this Court.

16. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant. The evidence in question has been properly appreciated by the learned First Appellate Court and there is no necessity of reappraisal of the whole evidence, suffice to say that the findings recorded by the learned Fist Appellate Court are based upon the correct appreciation of evidence and as such, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. However, the parties are left to bear their own costs.