R.S.A No. 1098 of 2002 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 1098 of 2002 Date of decision : September 08, 2009 Tej Pal, ...... Appellant (s) v. Rich Pal ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. M.L.Sarin, Sr. Advocate with Mr. Kabir Sarin, Advocate for the appellant. Mr. Ashok Aggarwal, Sr. Advocate with Mr. Mukul Aggarwal, Advocate for the respondent. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) This appeal has been filed against concurrent judgments of the Courts below dismissing the suit of the plaintiff/appellant for partition of two contiguous parcels of land, one measuring 455 sq. yards (purchased in the name of the father of the parties) and the other measuring 2 kanals 14 marlas (purchased in the name of the respondent). R.S.A No. 1098 of 2002 ::2:: As per the case set out in the plaint by the appellant, apart from the plot measuring 455 sq. yards, even the parcel of land measuring 2 kanals 14 marlas was benami property of the father of the parties purchased in the name of the respondent. Per contra the case set out in the written statement is that not only is the land measuring 2 kanals 14 marlas owned by the respondent, even the plot of 455 sq. yards belongs to the respondent, though purchased in the name of the father of the parties. It deserves to be mentioned here that on the same day as the sale deed of 2 kanals 14 marlas was executed in favour of the respondent, a prior agreement for 99 years lease was also executed in favour of the father of the parties. As per the appellant, the execution of the lease deed evidenced ownership of the father while as per the respondent the lease deed was executed so as to avoid harsh pre-emption laws. Both parties have admitted Will of the father wherein it was, inter alia, recorded that his wife had died; he had married off four of his daughters for whom he had made arrangements at the appropriate time; one of his sons Nand Kishore had died after marriage; and that he had already transferred his due share in favour of his heirs. He further mentioned that after his death whatever property he owned in village Sarai Khawaja would be inherited by his two remaining sons `the plaintiff and the respondent'. It is not disputed that apart from these two properties there is no other property in dispute. Both the Courts below considered the transaction of lease/purchase of 2 kanals 14 marlas of land and came to the conclusion that the said land belonged to the respondent and that the lease deed was executed only to avoid pre-emption. Learned counsel for the appellant has sought to attack the R.S.A No. 1098 of 2002 ::3:: judgment of the learned lower appellate Court particularly on the ground that the reasoning of the lower appellate Court is not at all clear. He has referred me to the entire evidence including the recitals in the lease deed, the sale deed and the Will to corroborate his argument that firstly, the appellant had established his case and, secondly in view of `unclear reasoning' of the learned appellate Court, it would be in the interest of justice that the matter be remanded back even though this would work to the prejudice of the appellant since he was a plaintiff. Learned counsel for the respondent as expected sought to defend the judgments of the Courts below. Counsel for the appellant has raised the following questions :- “ 1) Whether the Courts below have acted illegally, arbitrarily and without jurisdiction in dismissing the suit of the plaintiff-appellant for partition and rendition of accounts by grossly misreading the pleadings of the parties and extensive and cogent evidence on the record ? 2) Whether the Courts below have ignored or misread the contradictory pleas taken by the defendant- respondent in para nos. 1 and 4 of the written statement? 3) Whether the Courts below have committed a grave error in treating the lease deed dated 8.7.1964, Ex.PW7/A, as a sham transaction without even reading the recitals of the same, where contradiction has been mentioned ? 4. Whether the Courts below have proceeded on conjectures and surmises in placing reliance on the R.S.A No. 1098 of 2002 ::4:: alleged sale deed dated 10.9.1964 in favour of the defendant-respondent when the same was neither executed in presence of the defendant-respondent nor could he have had sufficient resources to enter into the same being a student at the relevant time ? 5. Whether the Courts below have ignored the fact that the lease deed dated 8.7.1964, Ex.PW7/A amounted to permanent alienation being for a period of 99 years in favour of the father of the parties which was further fortified by the sale deed dated 10.9.1964 in favour of the defendant-respondent which contains a clear and specific stipulation that only symbolic possession had been delivered in view of the lease deed and that actual possession would only be handed over once the above mentioned lease period elapsed ? 6. Whether the Courts below have erred in law and gone beyond their jurisdiction in holding that there was a family settlement/partition in 1964 when no date for the same exists nor any document or writing to support it has been placed on the record ? 7. Whether the judgments and decrees of the Courts below are vitiated as they are contrary to the various admissions contained in the pleadings and evidence of the defendant-respondent ? 8. Whether the Courts below have recorded findings contrary to the extensive and cogent evidence on the R.S.A No. 1098 of 2002 ::5:: record which proves that the plaintiff-appellant was always in possession of the suit property even after the alleged family settlement/partition ? 9. Whether the Courts below have ignored earlier litigation, produced on the record, between the parties which goes to show that the possession of the suit property was common between the parties even after the alleged family settlement/partition ? 10. Whether the Courts below have wrongly applied the limitation period to the suit of the plaintiff-appellant when the same would be computed from the time the defendant-respondent illegally and without any basis claimed the exclusive title upon the suit property ? 11. Whether the judgment and decree of the lower appellate Court is vitiated on the ground that the same has not been decided issue-wise ? 12. Whether the judgments and decrees of the Courts below are liable to be reversed being perverse ?” It would be seen that questions No.1 to 9 and 12 are all questions of fact. With regard to the findings regarding 2 kanals 14 marlas of land, counsel for the appellant has not been able to persuade me that in fact it was the lease deed which was the determinative document and not the sale deed. To my question as to what was the reason for the son buying the property on the same day as his father had entered into 99 years lease, counsel for the appellant gave no satisfactory explanation. However, the R.S.A No. 1098 of 2002 ::6:: explanation given by counsel for the respondent that the lease deed was resorted to only to avoid chances of pre-emption fits more cogently and rationally with this convoluted transaction where both parties have created a gordian knot of competing falsehoods and half truths. As regards the plot of 455 sq. yards, I find that both the Courts below have completely ignored that transaction and have held against the appellant only for the reason that they have found against him with regard to the second parcel of land. The only finding recorded by the learned trial Court is that the appellant was not able to identify the plot. In my opinion, once there is no dispute between the parties that there was a purchase of a plot of 455 sq. yards (with the respondent claiming that it was his benami property) there was no occasion to hold that the identity of the plot could not be established and, thus, non-suiting the appellant only on this ground. In this situation, this Court is left with two options, either to remand the case/call for a report, or to give a decision after considering the evidence. Had the evidence in this regard been complicated the first option would have been preferred but I find that in the face of unequivocal sale deed in favour of the father of the parties and in the absence of any credible evidence led by the respondent to prove his assertion that the same was benami, coupled with the fact that if this property had actually belonged to the respondent there was no reason for the father of the parties to have taken the trouble of executing a holographic Will (since, admittedly there was no other property in the name of the father at the time of his death), it can safely be held that the said property measuring 455 sq. yards was indeed joint property of the parties. Thus, with regard to questions No.1 to 9 and 12 I hold that the property measuring 2 kanals 14 marlas indeed belongs R.S.A No. 1098 of 2002 ::7:: exclusively to the respondent while that portion measuring 455 sq. yards is joint property of the parties. With regard to question No.10 I hold that being joint property, the question of limitation would have to be decided in favour of the appellant. With regard to question No.11 in view of my finding on questions No.1 to 9 and 12, I hold that the same does not arise. Consequently, this appeal is partly allowed and it is held that the property measuring 455 sq. yards continues to be joint and, thus, a preliminary decree is passed directing partition of that property. ( AJAY TEWARI ) September 08, 2009. JUDGE `kk'