RSA No. 1514 of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1514 of 1995 Date of Decision: 01.12.09 Siri Bhagwan son of Sh. Ram Chand son of Ganesh Lal, r/o Mohalla Ram Bara, Muktsar, District Faridkot, through LRs:- (i) Subhash Chander son; (ii) Suresh Kumar son; (iii) Satinder Kumar son; all residents of 9-A, Guru Anand Nagar, Muktsar, District Muktsar. (iv) Sunita Rani, daughter, wife of Ashwani, r/o H. No. 902, Tahli Mohalla, Ferozepur. (v) Tara Mani, daughter, wife of Parshotam Dass, Niramprai Colony, Triehnapalli, Tamil Nadu. (vi) Indira Mani, daughter, wife of Baldev Kumar, r/o Niramprai Colony, Trichanapalli, Tamil Nadu. ... Appellants Versus Sh. Bhagirath Lal son of Sh. Ram Chand son of Sh. Ganesh Lal, resident of Mohalla Ram Bara, Muktsar, Distt. Faridkot. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. J.R. Mittal, Senior Advocate, with Mr. Kashmir Singh, Advocate, for the appellant. Mr. S.C. Pathela, Advocate, for the respondent. SHAM SUNDER, J. * * * * This appeal, is directed against the judgement and decree, RSA No. 1514 of 1995 2 dated 02.05.95, rendered by the Court of Additional District Judge, Faridkot, vide which, it accepted the appeal, against the judgement and decree, dated 18.11.92, rendered by the Court of Additional Senior Sub Judge, Muktsar, and decreed the suit of the plaintiff. 2. The facts, in brief, are that, the plaintiff/respondent, became the owner of the property, in dispute, by way of family settlement, arrived at, between the parties, on 16.12.84. It was stated that the defendant (now deceased) represented by his legal representatives, who are the appellants, is the real brother of the plaintiff. It was further stated that owing to the aforesaid family settlement, the defendant, relinquished his rights, in favour of the plaintiff, in respect of the property, in dispute. But, later on, the defendant, started threatening the plaintiff, to forcibly dispossess him, from the property, in dispute. The defendant, was many a time, asked to desist from his nefarious designs, but to no avail. Ultimately, a suit for permanent injunction, was filed. 3. The defendant, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was stated that a civil suit titled, as 'Naranjan Lal etc. Vs. Des Raj, was pending, between the parties. It was further stated that the plaintiff, was contesting the civil suit, on behalf of the defendant, and his brother Naranjan Lal. It was further stated that the plaintiff and Naranjan Lal, used to obtain the signatures of the defendant, on blank papers, during the pendency of that civil suit, on the pretext, that the same, were to be produced, before the Court, which were later on, RSA No. 1514 of 1995 3 converted into memorandum of family partition. It was further stated that the plaintiff, filed an ejectment application, against Mangal Singh, and the litigation, between them, went up to the Apex Court. It was further stated that the plaintiff, did not take a plea, in the ejectment application, that the property, in dispute, had fallen, to his share, during the family settlement. It was further stated that the appeal, filed by Mangal Singh, was dismissed, by the Apex Court, on 17.03.86. It was further stated that the plaintiff, also filed a suit, in the Court of the then Sub Judge 1st Class, Muktsar, on 19.08.86, wherein, he did not mention the factum of family partition, arrived at, between the parties, on 16.12.84. It was further stated that, in the ejectment application, the plaintiff, took up the plea, that he was in possession of 1/ 2 share of the property, bearing No. 3647, situated in Rambra Street, Muktsar. It was further stated that the plaintiff, also appeared, in the Court of the Rent Controller, on 08.06.82, wherein, he stated, that the portion of the property, shown in yellow colour, was in his possession, and the portion, shown in red colour, was in possession of the defendant. It was further stated that the plaintiff, was owner in possession of the property, in question, to the extent of 1/ 2 share, on the eastern side, whereas, the defendant, was owner, to the extent of 1/ 2 share thereof, consisting of deori, bathroom, kitchen, store room, on the ground floor, two chabaras, on the first floor and barsati, on the second floor. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- RSA No. 1514 of 1995 4 (i) Whether the plaintiff is estopped by his act and conduct from filing the suit as per allegations contained in para No. 1 of the written statement? OPD (iA) Whether the respondents have violated any order of the Court? OPP (ii) Whether the plaintiff is owner in possession of the house in dispute on the basis of alleged family settlement, dated 16.12.84? OPP (iii) Whether the plaintiff is entitled to the injunction prayed for? OPP (iv) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal, was preferred by the plaintiff/respondent, which was accepted, by the Court of Additional District Judge, Faridkot, vide judgement and decree dated 02.05.95. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendant/appellant. 8. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 9. The following substantial questions of law arise, in this appeal, for the determination of this Court:- (i) Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, that after the family settlement, duly reflected in P2, a memo, the plaintiff, was put in possession of RSA No. 1514 of 1995 5 the property, in dispute? (ii) Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence that, later on, the plaintiff, was forcibly dispossessed, from the property, in dispute, by the defendant/appellant, during the pendency of the suit, and, as such, he was entitled to the mandatory injunction prayed for? (iii) Whether the first Appellate Court, on account of misreading and misappreciation of evidence, recorded perverse findings, that P2, without registration, was admissible into evidence? 10. The Counsel for the appellants, submitted that the trial Court, was right, in coming to the conclusion, that P2 partition deed, was not admissible into evidence, for want of stamp and registration. He further submitted that the trial Court, was also right, in holding, that, as such, the question of putting the plaintiff, in possession, on the basis of such document, did not at all arise, nor there was any question of violating the order of injunction, by the defendant/appellant. He further submitted that the first Appellate Court, was wrong, in coming to the conclusion, that P2, was not a partition deed, but was only a memorandum of partition, containing the terms and conditions of family settlement, which was, arrived at earlier. He further submitted that the first Appellate Court, was wrong, in coming to the conclusion, that the plaintiff, was put in possession of the property, in dispute, on the basis of P2, but, in violation of the order of injunction, the defendant, dispossessed him therefrom, during the pendency of the suit, RSA No. 1514 of 1995 6 and, as such, he was entitled to the decree for mandatory injunction. He further submitted that the judgement and decree of the first Appellate Court, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondent, submitted that the parties, to the suit, being real brothers, with a view to resolve the family disputes amicably, a family settlement took place and the terms thereof, were, later on, reduced into writing, by way of memo P2. He further submitted that the first Appellate Court, was, thus, right in holding, that P2, was admissible, into evidence. He further submitted that the first Appellate Court, was also right, in holding, that the plaintiff, was put in possession of the property, in dispute, on the basis of the family settlement, but, later on, he was dispossessed, in violation of the order of injunction. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, are liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the first Appellate Court, even if, RSA No. 1514 of 1995 7 the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. The first question, that falls for determination, is, as to whether, there was any family settlement, between the parties, to resolve their disputes amicably, the terms and conditions whereof, were, later on, reduced into writing, vide memo P2. The case of the defendant, throughout was that, civil litigation, amongst the brothers, was pending, and, the plaintiff was pursuing the same, on their behalf and during the course thereof, his signatures were obtained on blank papers by the plaintiff which were converted into P2. The factum, that civil litigation, was pending, amongst the brothers, was proved, by the plaintiff, by leading additional evidence, during the pendency of appeal, before the first Appellate Court. He proved the documents P6 to P20, copies of the plaints of various suits, copies of the applications, moved therein, and, copies of the orders, passed by various Courts. From these documents, it was proved, that the civil cases, pending amongst the brothers, were being pursued by Niranjan Lal, brother of the parties, and the plaintiff was not pursuing the same. It was not Bhagirath Lal, plaintiff, who was pursuing the civil litigation, pending amongst the parties, as claimed by the defendant. It means, that there was a genuine dispute, between the parties, with regard to the property, in dispute and other properties. Since the parties, were closely related, RSA No. 1514 of 1995 8 to each other, as brothers, with a view to resolve the disputes amicably, a family settlement was arrived at, and the terms and conditions thereof, were reduced, into writing, vide memo P2, dated 16.12.84. This document bears the signatures of Niranjan Lal, as well as the parties to the suit. The defendant, failed to explain, as to how, his signatures appeared, on P2, memorandum, dated 16.12.84. The first Appellate Court, was, thus, right in holding, that P2, was not a partition deed, but, was only a memorandum of partition. The intention of the parties, was required to be taken into consideration, while interpreting the document P2. The intention of the parties, was to resolve their disputes amicably, and, as such, P2, memorandum of family settlement, came into existence. According to P2, the house, in dispute, fell to the share of the plaintiff/respondent, and the shops, situated in Gandhi Chowk, fell to the share of the defendant/appellant. Surinder Mohan son of Gaja Nand, who was, later on, adopted by Kundan Lal, brother of Gaja Nand, was examined, as PW6. He stated that the shop, fell to the share of Gaja Nand, and was in possession of Siri Bhagwan, defendant. The shop, which fell to the share of the plaintiff and the defendant, was exchanged with the shop of Gaja Nand. Gaja Nand, obtained the shop from the plaintiff, and the defendant, and gave the shop, situated in Gandhi Chowk. It was the shop, which fell to the share of Gaja Nand, which was taken by the defendant, in exchange of the shop, given by the plaintiff and defendant, to said Gaja Nand. DW5/A, is the exchange deed, executed between Siri Bhagwan and Gaja Nand, whereas, DW5/B, is the sale deed, executed by Bhagirath RSA No. 1514 of 1995 9 Lal, plaintiff, in favour of Gaja Nand. Siri Bhagwan, while appearing, as DW1, in the Court, admitted that, both the documents, viz sale deed and exchange deed, were executed, on 18.12.55. According to P3, voter list, for the year 1984, Siri Bhagwan, defendant, and the members of his family, were shown, to be in occupation of H. No. 6460, whereas, the plaintiff, and his family members, were shown, to be in occupation of H. No. 6464. Exhibits P4 and P5, are the voter lists, for the year 1988, according to which, the plaintiff, and his family members, were shown, to be in possession of H. No. 6465. In the beginning of P2, the words 'Takseem Khangi', were written, which meant, that it was a memorandum of partition. Siri Bhagwan, defendant, also admitted, in his statement, that P2, was a formal document. The first Appellate Court, was, thus, right in holding, that P2, was not a partition deed, but, only contained the terms and conditions of oral family settlement, which was arrived at, between the parties, earlier to the writing of the same. The first Appellate Court, was also right, in holding that, in pursuance of the said family settlement, the plaintiff/respondent, was put in possession of the property, in question. 13. The next question, that arises for consideration, is, as to whether, the order of status-quo, which was passed, by the trial Court, was violated by the defendant, during the pendency of the suit, or not. A Local Commissioner, was appointed, in this case, who went, to the spot, and gave the report. According to the report of the Local Commissioner, lock of the room, on the ground floor, was opened by the son of the defendant, whereas, the lock of the almirah inside the RSA No. 1514 of 1995 10 room, was opened, by the son of the plaintiff. Only one cot, was lying, in the room, and bedding, was spread, on the cot. The room, on the first storey, was locked with the help of iron chain and there were no nuts and bolts fixed, to the room, and, two rooms were lying vacant. Since the lock of the almirah inside the room, was of the plaintiff, it means, that the plaintiff, was in possession of the property. It was, thus, proved from the report of the Local Commissioner, that lock outside the room, was affixed, by the defendant, during the pendency of the suit, after the passing of the status-quo order, and, thus, the defendant, and his sons took forcible possession of the property, in dispute, in violation of status-quo order, dated 20.10.89. Accordingly, FIR dated 04.11.89, was got registered, against the sons of the defendant. Charge was framed, by the Court of Sub Divisional Judicial Magistrate, Muktsar, under Section 452 and other Sections of the Indian Penal Code. It was, thus, established that the sons of the defendant trespassed, into the portion, which was vacated, by the defendant, after the application, seeking temporary injunction, was moved, in the Court. The first Appellate Court, was, thus, right in holding, that the plaintiff, was entitled to the mandatory injunction, as he was dispossessed from the property, in dispute, which fell to his share, in the family settlement, in violation of the status-quo order. 14. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The RSA No. 1514 of 1995 11 judgement and decree of the first Appellate Court, are, thus, liable to be upheld. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 15. The substantial questions of law, depicted above, are answered, against the appellants. 16. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 01.12.2009 (SHAM SUNDER) Amodh JUDGE