R. S. A. No. 3188 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3188 of 2006 Date of Decision : May 13, 2010 Krishan Kumar .... Appellant Vs. Dayawanti and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Mani Ram Verma, Advocate for the appellant. Mr. R. S. Hooda, Advocate for respondents no.1 and 2. Mr. Rajinder Goel, Advocate for respondent no.13. None for remaining respondents. * * * L. N. MITTAL, J. (Oral) : This is second appeal by plaintiff Krishan Kumar, who has been unsuccessful in both the courts below. In open auction conducted by defendant no.5 – Bhiwani Improvement Trust (respondent no.13 herein), disputed shop was purchased by four persons in equal shares i.e. 1/4th share each. Out of them, two R. S. A. No. 3188 of 2006 2 purchasers M/s Dharam Pal Harish Kumar and Co. and Ram Chander sold their 1/4th share each to Dayawanti – defendant no.1, who accordingly became owner of half share of the disputed shop. Jagir Singh – defendant no.2 is owner of 1/4th share of disputed shop being original purchaser of the shop. The plaintiff, who also purchased 1/4th share in the aforesaid auction, is still owner of said 1/4th share in the shop. However, defendant no.5 Improvement Trust had transferred 1/12th share each in favour of defendant no.3 Mool Chand and defendant no.4 Shyam Lal (since deceased and now represented by respondents no.4 to 12 as his legal representatives) and the plaintiff was left with 1/12th share in the shop as per said orders. The plaintiff challenged the said orders of the Trust in the suit being null and void. The plaintiff claimed partition of the suit property and separate possession of his 1/4th share. Defendants no.1 and 2 inter alia pleaded that defendants no.3 and 4 had 1/12th share each in the shop and the plaintiff had only 1/12th share in the shop and plaintiff and defendants no.3 and 4 paid auction amount accordingly and in this regard, writing dated 27.04.1976 was also executed. Accordingly, it was alleged that plaintiff has only 1/12th share in the shop and defendants no.3 and 4 also had 1/12th share each in the shop. Defendants no.3 and 4 also adopted the written statement filed by defendants no.1 and 2. Defendant no.5 filed separate written statement controverting R. S. A. No. 3188 of 2006 3 the allegations of the plaintiff regarding the orders passed by defendant no.5. It was alleged that share in the name of defendants no.3 and 4 was transferred on the basis of written agreement of plaintiff himself. Learned Civil Judge (Junior Division), Bhiwani, vide judgment and decree dated 23.04.2001, dismissed the plaintiff's suit. It was held that ownership rights had not yet been transferred and there was only agreement to sell and therefore, the shop could not be partitioned. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Bhiwani, vide judgment and decree dated 10.03.2006. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that courts below have misread the evidence inasmuch as full payment of sale consideration had been made to Improvement Trust, as per Certificate dated 02.01.1992 (Ex.P-2) and therefore, ownership right stood transferred. It was also contended that the lower Courts, inadvertently or otherwise, referred to agreement Ex.D-3 to hold that title had not yet been transferred, whereas agreement or writing Ex.D-3 is only regarding 1/12th share each of defendants no.3 and 4 in the disputed shop, out of 1/4th share of the plaintiff, who was also left with 1/12th share in the shop according to this agreement, but the said agreement Ex.D-3 dated 27.04.1976 has nothing to do with the R. S. A. No. 3188 of 2006 4 ownership rights as such. Learned counsel for respondents no.1 and 2 also supports the aforesaid contention. Even learned counsel for respondent no.13 (defendant no.5) Improvement Trust concedes that ownership of the disputed shop stands transferred pursuant to auction. In view of the aforesaid, I find that following substantial question of law arises for determination in the instant second appeal :- “Whether the courts below have misread the evidence and arrived at erroneous and illegal finding regarding title of the disputed shop ?” In view of submissions made on behalf of counsel for the parties, as noticed herein above, the aforesaid substantial question of law has to be answered in the affirmative. The courts below have gravely erred in holding that title of the disputed shop has not yet been transferred and therefore, the shop cannot be partitioned. Now, the question arises regarding the shares of the respective parties. There is no dispute that defendant no.1 has half share in the disputed shop and defendant no.2 has 1/4th share in the disputed shop. The dispute is regarding the remaining 1/4th share only. The plaintiff-appellant claims the said entire 1/4th share in the shop. However, writing dated 27.04.1976 (Ex.D-3) stands proved, wherein the plaintiff himself admitted that he and defendants no.3 and 4 have purchased 1/4th share in the shop in R. S. A. No. 3188 of 2006 5 equal shares i.e. 1/12th share each. Consequently, the plaintiff has only 1/12th share in the shop and defendants no.3 and 4 also have 1/12th share each in the disputed shop. Learned counsel for the appellant contended that defendants no.3 and 4, after making contribution of their share towards 1/4th of the purchase price, did not contribute their share in the remaining 3/4th price of the shop. This contention does not lie in the mouth of the appellant as it is completely beyond pleadings and evidence. In fact, the plaintiff denied the writing Ex.D-3. However, writing Ex.D-3 shows that defendants no.3 and 4 had contributed their share in 1/4th sale consideration paid at the time of auction and there is no plea or evidence that defendants no.3 and 4 did not contribute their share in the remaining sale price. For the reasons recorded herein above, it is held that plaintiff and defendants no.3 and 4 have 1/12th share each in the disputed shop. In view thereof, finding of the courts below on issue no.4, regarding orders of the Improvement Trust allocating the said shares, is also set aside and the said orders are held to be valid. In view of the aforesaid discussion, the instant second appeal is allowed partly. Judgments and decrees of both the courts below are set aside. Suit filed by the plaintiff-appellant is decreed partly. Preliminary decree for partition of the disputed shop is passed holding that plaintiff and defendants no.3 and 4 (defendant no.4 now represented by respondents no.4 to 12 as his legal representatives) have 1/12th share each in the disputed R. S. A. No. 3188 of 2006 6 shop, whereas defendant no.1 has half share in the disputed shop and defendant no.2 has 1/4th share in the disputed shop. May 13, 2010 ( L. N. MITTAL ) monika JUDGE