IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 197 of 1995 Date of decision : 15.11.2010 Smt. Rameshwari Devi and Ors ….. Appellants. Vs. Smt.Kashmiri Devi & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Appellants : Mr. Anand Sharma, Advocate. For the Respondents : Mr. Varun Rana, vice Mr. N.K. Sood, Advocate, for respondent No.1. Mr. N.K. Thakur, Advocate, for respondents No.3 and 4. Kuldip Singh, J( Oral) This appeal has been directed against judgment, decree dated 31.8.1994 passed by learned District Judge in Civil Appeal No.167 of 1990 affirming judgment, decree dated 20.9.1990 passed by learned Sub Judge Ist Class, Court No.(1), Amb, District Una in Civil Suit No.1098 of 1984 dismissing the suit of appellants. Some of the parties have died during the pendency of the litigation, therefore, the parties in the judgment are referred to as plaintiffs and defendants. Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 2. The facts in brief are that plaintiffs had filed a suit for declaration and possession of shop marked as ABCDEFGH and fully described in the plaint, situate in Daulatpur on the averments that three brothers namely Nand Lal, Tulsi Ram and Pala Ram sons of Shub Karan were owners in possession of three shops, one situated at Wari and the other two at Daultpur. The three brothers had partitioned their shops in which the shop situated at Wari fell to the share of Pala Ram, the shop in dispute to the share of Nand Lal and third shop situated at Daulatpur fell to the share of Tulsi Ram. All the three brothers, since then had been in separate possession of the shops fallen to their shares. 3. Nand Lal who became owner in possession of the shop in dispute rented out the shop to one Swaya Ram in the year 1953. Swaya Ram entered into partnership of business with Dina Nath in the year 1974 but thereafter the partnership between them was dissolved, the shop in question was sub-let to Dina Nath by Swaya Ram. Thereafter Kishori Lal and Satish Kumar defendants No.3 and 4 came in possession of the shop in question. It has been alleged that Nand Lal has been succeeded by plaintiffs and therefore, the plaintiffs are the exclusive owners of the shop in question but the defendants No.1 and 2 who have nothing to do with the shop in question had illegally executed sale deed dated 26.11.1981 in favour of defendants No.3 and 4. In this way, defendants No.3 and 4 started claiming title in the shop in question which is illegal, null, void and not binding on the plaintiffs. The suit was filed in the year 1984 for declaration to the …3… effect that defendants No.1 to 4 have nothing do with the shop in question and the plaintiffs are absolute owners of the shop. The prayer for declaring sale deed dated 26.11.1981 in favour of defendants No.3 and 4 illegal and void was also made. As a consequential relief the plaintiffs had made prayer for direction to hand over possession of the shop in question to them. 4. The defendants No.1 to 4 had contested the suit. They denied the partition of the shop in question or that the shop in question had fallen to the share of Nand Lal in the alleged partition. Jamna Devi and Kashmiri Devi are the wife and daughter of Tulsi Ram respectively, they inherited the estate of Tulsi Ram alongwith his other heirs. They have sold their share in the shop in question to defendants No.3 and 4 in their own right and therefore, they are in possession of the shop as co-sharers. The plaintiffs had contested the claim of the defendants in the replication. On the pleadings of the parties, the following issues were framed:- 1. Whether the sale deed dated 26.11.1981 made by defendants No.1 and 2 in favour of defendants No.3 and 4 is illegal, null and void? OPP 2. Whether the plaintiffs are the owners of the suit property by way of private arrangement as alleged? OPP 3. Relief. The issue No.1 was answered in negative and issue No.2 was partly answered in affirmative and the suit was …4… dismissed on 20.9.1990. In appeal the learned District Judge on 31.8.1994 has affirmed the judgment, decree dated 20.9.1990 of the trial Court, hence second appeal. In the second appeal CMP No.295 of 1997 for additional evidence was filed. On 15.7.1997 the learned Single Judge has held that no case was made out for allowing additional evidence and the application for additional evidence was dismissed. However, judgments, decrees passed by the two Courts below were set aside, appeal was allowed and the suit was decreed as prayed. The mater was taken up to the Supreme Court and on 6.8.1999 the Supreme Court has observed that the limitation of Section 100 of the Code of Civil Procedure has not been kept in view. Therefore, on this ground and without expressing any opinion on the merits of the controversy between the parties, the appeal was allowed and the second appeal was restored to the file of the High Court with a direction to re-decide the second appeal in accordance with law and in the light of the limited jurisdiction to be exercised by the High Court under Section 100 CPC. 5. The learned counsel for the parties have submitted that earlier substantial questions of law were not framed and this Court had decided the appeal without framing the substantial questions of law. The appeal was admitted on following substantial questions of law after remand from the Supreme Court:- 1. Whether both the courts below did not travel beyond the pleadings of the parties and came …5… to the conclusion that the properties are still joint even though it is nobody’s case? 2. Whether both the courts below did not err in not granting a declaration at least to the effect that impugned sale deed would bind only to the extent of the share of Smt. Jamna Devi and Kashmiri Devi and with respect to the rest of the property declaration should have been granted. 6. I have heard learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that two courts below have erred in returning the finding that no partition took place among the co- sharers and defendants No.1 and 2 have rightly sold the shop in question to defendants No.3 and 4 vide sale deed dated 26.11.1981 Ex.DW1/A. It has been submitted that the statements Ex.PW-7/A and Ex.PW-7/B of Kashmiri Devi have not been considered properly so also Panchayat notice Ex.PW-3/A. It has been submitted that the two courts below have gone beyond the pleadings. In alternative, it has been submitted that at least the courts below should have given declaration that the sale deed would bind only to the extent of share of Jamna Devi and Kashmiri Devi. A prayer has been made for allowing CMP No.295 of 1997 for examining Dharam Pal in the second appeal. 7. The learned counsel for the respondents No.1,3 and 4 have supported the impugned judgment, decree and have submitted that two courts below have recorded a finding of fact that there was no partition among the co-sharers and the sale deed dated 26.11.1981 has been rightly executed. It has been …6… submitted that no case for additional evidence has been made out by the appellants and therefore, application for additional evidence may be dismissed. 8. The application for additional evidence and substantial questions of law referred to above are interconnected, therefore, all of them are taken up together for consideration. In the application for additional evidence, it has been stated that Smt. Kashmiri Devi in statement Ex.PW-7/A on 5.3.1982 has stated that one Dharam Pal was in possession of the shop which had come to her share and she used to receive the monthly rent from him. In statement Ex.PW-7/B dated 22.5.1985 Kashmiri Devi has admitted the partition. Dharam Pal is/was tenant in the shop and is a material witness and his statement by way of additional evidence will assist this Court in order to resolve the real controversy between the parties and therefore, submission has been made to permit the appellants to examine Dharam Pal by way of additional evidence. This application has been opposed by respondents No.3 and 4. The application for additional evidence can be allowed only on the grounds provided under Order 41 Rule 27 CPC which is as follows:- “Production of additional evidence in Appellate Court-(1) The parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary, in the Appellate Court. But if— (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or …7… (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, The Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 9. The suit was filed on 23.11.1984 and it was decided by the trial Court on 20.9.1990. The statement Ex.PW-7/A was recorded on 5.3.1982 and statement Ex.PW-7/B was recorded on 22.5.1985. The appellants have filed no application for additional evidence for examining Dharam pal when the matter was pending before the learned lower appellate court, the first appeal was decided on 31.8.1994. In the application there is no whisper of due diligence by the appellants. The application for additional evidence is not bonafide. It has been filed only to delay the proceedings. It is not the case of the appellants that they were not aware of earlier stand of Kashmiri Devi or that they came to know after 31.8.1994 that Dharam Pal was tenant in the shop. On the contrary for examining Dharam Pal the appellants are relying …8… on the statements Ex.PW-7/A and Ex.PW-7/B of Kashmiri Devi and also of the fact that Dharam Pal is a tenant in the shop. The appellants have not made out a case for additional evidence, hence application for additional evidence is dismissed. 10. The pleaded case of the plaintiffs is that as per family arrangement between three brothers, Nand Lal, Tulsi Ram and Pala Ram three shops were partitioned among them, the shop in dispute fell to the share of Nand lal, who rented out the shop to Swaya Ram in the year 1953. The further case of the plaintiffs is that the defendants No.1 and 2 have no right, title and interest in the property in dispute and the sale deed dated 26.11.1981 Ex.DW1/A executed by defendants No.1 and 2 in favour of defendants No.3 and 4 is illegal, null and void. The plaintiffs have projected the case that suit property at one point of time was jointly owned by Nand Lal, Tulsi Ram and Pala Ram. The plaintiffs are alleging partition of the three shops. It was for the plaintiffs to prove that the three shops were partitioned among Nand Lal, Tulsi Ram and Pala Ram or their successors. The appellants have not pointed out from the record as to when the alleged partition among Nand Lal, Tulsi Ram and Pala Ram had taken place. 11. The learned counsel for the appellants has submitted that the partition of the shops has been admitted by defendants No.1 to 4 in their written statement. The perusal of the written statement indicates what has been pleaded in the written statement is that there was private arrangement, as a result of …9… which shop in dispute came in ‘Hissedari’ possession of defendants No.1,2 and 5 to 10. The enjoyment of joint property in ‘Hissedari’ possession is not partition. It is common knowledge that when property is owned by several persons then for the purpose of enjoyment of such property some arrangement is made by the co-sharers for enjoyment of the property by co- sharers but that enjoyment cannot be termed as partition. The pleadings in the written statement of defendants No.1 to 4 do not indicate that the defendants No.1 to 4 have pleaded that the property in fact was partitioned. The appellants from the record have not pointed out that in pursuance of alleged partition any mutation was entered in the revenue record and the property was shown as partitioned property among the co-sharers. The appellants even in the plaint have not pleaded that when partition took place and who were present when the partition had taken place and whether any document of partition was prepared or not. In these circumstances it can not be said that the property in dispute was partitioned. The two courts below on the basis of material on record have recorded a finding of fact that the property was not partitioned. 12. The learned counsel for the appellants has submitted that statements Ex.PW-7/A and Ex.PW-7/B of Kashmiri Devi defendant No.2 indicate that there was partition. The defendants No.3 and 4 are driving title also through Kashmiri Devi. Therefore, defendants No.3 and 4 are bound by the statements Ex.PW-7/A and Ex.PW-7/B of Kashmiri Devi. The defendants …10… No.3 and 4 have purchased the disputed shop vide sale deed dated 26.11.1981 Ex.DW-1/A. The statement Ex.PW-7/A was made on 5.3.1982 and statement Ex.PW-7/B was recorded on 22.5.1985, hence on the dates when statements Ex.PW-7/A and Ex.PW-7/B were made, Kashmiri Devi had no interest in the shop in question and therefore defendants No.3 and 4 are not bound by the statements Ex.PW-7/A and Ex.PW-7/B of Kashmiri Devi. In order to bind the defendants No.3 and 4 by any previous statement of Kashmiri Devi, it must be shown that on the dates of making statements Kashmiri Devi should have interest in shop. Therefore, it cannot be said that in law defendants No.3 and 4 are bound by the statements Ex.PW-7/A and Ex.PW-7/B. 13. The learned counsel for the appellants has submitted that notice Ex.PW-3/A was issued by the Panchayat to Bagwan Dass Sharma. According to learned counsel for the appellants this notice indicates that Bagwan Dass Sharma was the owner of the shop and that is why the Panchayat issued the notice to Bagwan Dass Sharma. This contention is only noticed to be rejected on the ground that the notice will not create title in favour of a particular person. The notice was issued on 12.8.1976. There is positive evidence on record that shops were not partitioned among the co-sharers and on 26.11.1981 the defendants No.1 and 2 had executed the sale deed of the shop in question in favour of defendants No.3 and 4. Therefore, simply on the basis of notice Ex.DW-3/A it cannot be said that Bagwan Dass Sharma is the owner of the shop in question. …11… 14. The sale deed dated 26.11.1981 was assailed in the suit by the appellants on the ground that defendants No.1 and 2 had no right, title and interest in the shop in view of alleged partition among the co-sharers and the shop in question fell to the share of appellants. This contention of the appellants has already been rejected. It is not the case of the appellants that defendants No.1 and 2 had sold the property vide sale deed Ex.DW-1/A dated 26.11.1981 in excess of their shares. The appellants have failed to make out a case that the two courts below have travelled beyond the pleadings while dismissing the suit of the appellants. The property was joint. The defendants No.1 and 2 had every right to sell their shares by virtue of sale deed dated 26.11.1981 Ex.DW-1/A. The appellants have not pointed out that any material evidence has been ignored by the Courts below or inadmissible evidence has been considered while dismissing the suit of the appellants. In second appeal evidence cannot be re- appreciated. The substantial questions of law No.1 and 2 are decided against the appellants. 15. No other point was urged. 16. The result of above discussion, the appeal fails and is accordingly dismissed. No costs. November 15, 2010 ( Kuldip Singh ) (sks) Judge.