Regular Second Appeal No. 2981 of 2010(O&M) 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 2981 of 2010(O&M) Date of Decision: 15.7.2011 Jasbir Singh Lamba and Others …Appellants Versus Jag Mohan Singh and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Sarwan Singh, Senior Advocate with Mr. N.S. Rapri, Advocate, for the appellants. Kanwaljit Singh Ahluwalia, J. (Oral) Civil Misc. No. 7676-C of 2011 Civil Misc. Application is allowed. Exemption from filing of a certified copy of sale deed dated 7.7.1997 is granted. Civil Misc. No. 7677-C of 2011 Civil Misc. Application is allowed. As prayed, translated copy of sale deed dated 7.7.1997 is taken on record. Regular Second Appeal No. 2981 of 2010 Jag Mohan Singh, who had purchased 2/15th share vide sale deed dated 7.7.1997 from Dharampal, filed a suit for possession by way of partition of land and building comprised in the suit land, details and Regular Second Appeal No. 2981 of 2010(O&M) 2 description whereof has been given in the head note of the plaint, being a co-sharer. It is further pleaded that on the basis of the said sale deed, mutation has been sanctioned. It was specifically averred that defendant No.5/appellant No.1-Jasbir Singh Lamba is is in actual physical possession of the land bearing khasra No. 35 and he has also raised construction in some portion thereof in the form of a residential house. It is further averred that defendant No.5 is alleged to have purchased the share of defendant No.6/respondent No.5 but in the revenue record, name of defendant No.6 is reflected. In the suit, a grievance was made that the defendants nowhere permitted the plaintiff to have a joint peaceful enjoyment and use of the property. There was a constant tension between the co-sharers. Therefore, actual physical possession and a separate portion of the property was sought which had fallen to the share of plaintiff by way of mutual partition. Gajender Singh, defendant No.1 to the suit, filed a written statement. It was not denied that Darampal had 2/15th share in the property but the factum of sale deed executed by Dharampal, in favour of the plaintiff, was denied. It was further averred in the written statement that Dharampal had neither saleable title in the suit land nor was he competent to execute any sale deed in favour of the plaintiff. The sale deed dated 7.7.1997 is illegal, sham and void document and thus, is not binding on the rights of the respondents. In short, case of the defendants was that a business under the name and style of Lamba Poultry Farm was run by the defendants and Dharampal was also its partner. For running the said business, a loan of ` 30,000 was taken from the Co-operative Bank, Palwal, by mortgaging Regular Second Appeal No. 2981 of 2010(O&M) 3 the suit land with the bank. The outstanding amount payable to the bank increased to ` 52,842. Then all the persons, who were running the Poultry Farm, agreed to close the business and the partners in the business decided to repay the loan amount to the bank by selling the land in question. It was further stated that it was agreed that defendant No.1 should pay loan to the bank and it was further agreed that the partners in the business would transfer their share in the suit land in favour of defendant No.1 and defendants No.3 to 5 have also undertaken to repay the loan to the Co-operative Bank, Palwal, which was actually payable by defendant No.1. Therefore, it was stated that since the loan was paid by defendant No.1 Dharampal, who had sold the land to the plaintiff, was not competent to sell as he had agreed to sell his share to defendant No.1. Defendant No.6 also filed a separate written statement, wherein he stated that Khasra No. 35 is owned and possessed by him and the plaintiff has no concern with the same. The trial Court, after conclusion of the pleadings, had drawn the following issues:- “1. Whether the plaintiff is entitled for decree for possession by way of partition by metes and bounds of the property in dispute? OPP 2. Whether the plaintiff has no locus standi to file the present suit? OPD 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff has no cause of Regular Second Appeal No. 2981 of 2010(O&M) 4 action to file the present suit? OPD 5. Whether the suit is bad for mis joinder of cause of action and parties? OPD 6. Relief.” The trial Court, after the parties had concluded their evidence, appreciated the same and returned the following findings:- “15. I have heard Ld. Counsel for the parties and have gone through the case file carefully. To determine the dispute between the parties, the oral evidence of DW.3 Gajender Singh is very relevant. This witness has specifically admitted that no civil decree was suffered in favour of the defendants. Only Dharam Pal had made oral assurance that after repaying the loan he will transfer his share in favour of the defendants. This admission on the part of the defendants makes it clear that there is no defect in the sale deed Ex.P1 which is duly proved by the plaintiff by examining PW.1 Lal Chand, Deed Writer. 16. Regarding the documents placed on the file by the defendants, I am of the view that these documents will not dilute the claim of the plaintiff in any manner as witness DW.3 Gajender Singh has specifically stated that no civil decree was ever suffered...” The Court further held that the plaintiff has proved that Regular Second Appeal No. 2981 of 2010(O&M) 5 because of sale deed Ex.P1, he had become co-sharer of the property, therefore, the suit was decreed. Aggrieved against the same, the appellants filed an appeal. The lower Appellate Court, vide its judgment dated 2.3.2010, concurred with the findings returned by the trial Court and held as under:- “18. There appears absolutely no force in the arguments of learned counsel for the defendants. Indeed, it is proved from the certificate Ex.D9 that the amount outstanding in the loan account of Lamba Co-op. Poultry Farming Society Ltd. was deposited by Sh. Gajender Singh Lamba, President of the Society, but there is absolutely nothing on the file to prove any kind of settlement/agreement between the partners/members of the society. It is also not proved that Sh. Gajender Singh had repaid the due amount from his personal funds. Certified copy of the judgment and decree dated 29.9.1986 is Ex.D6 and Ex.D7, on which the defendants had relied upon for alleging that in pursuance of an understanding/agreement the members/partners of the society had relinquished their share in favour of Sh. Gajender Singh and his sons. Apparently Sh. Dharam Pal son of Sh. Sheodutt Mal was not a party to Suit No. 552 of 1986 in which the judgment Ex.D6 and decree Ex.D7 were passed. When Sh. Dharam Pal was not Regular Second Appeal No. 2981 of 2010(O&M) 6 a party to the decree the question of his having surrendered any right/title in favour of defendant Gajender Singh and his sons, did not arise. No other evidence oral or documentary could be produced by the defendants to support their contention that Sh. Dharam Pal had relinquished his right, title and interest in their favour and was left with no share in the suit property...” Mr. Sarwan Singh, Senior Advocate, assisted by Mr. N.S. Rapri, Advocate, appearing for the appellants, has relied upon Section 52 of the Haryana Co-operative Societies Act, 1984 (hereinafter referred to as “the Act”), to contend that if any outstanding demand, which is to be paid by the Co-operative Society by any member or past member or the deceased member, that shall be the first charge upon the property owned by the member. Before this argument could be taken into consideration, learned senior arguing counsel was called upon to refer to the written statement to show as to whether, in the pleadings, any stand was taken by the defendants that any Co-operative Society was formed or not. After going through the contents of written statement, it has been very fairly admitted that it is nowhere pleaded by the parties that the Co-operative Society indeed was formed. However, learned arguing counsel has referred to Ex.D9 to contend that this Court should infer that a Co-operative Society by the name and title of Lamba Poultry Farm was formed. Since there was no specific pleading to this effect in the written statement two following pertinent questions have arisen: Regular Second Appeal No. 2981 of 2010(O&M) 7 i) Whether the business of Poultry Farm was run under the name and style of Lamba Co-operative Poultry Farming Society or in fact such a Society was created or not? No certificate of registration of the Co-operative Society has been proved. No witness has been examined from the office of Registrar, Co-operative Societies, to show that such a Society, at any time, was formed by various persons. Therefore, answer is apparently against the appellants. ii) The second question as to whether Dharampal, who had sold the land, was a member of the Co- operative Society or not has also not been proved by bringing on record any evidence. Therefore, Section 52 of the Act cannot be invoked in its strict sense. Having held that Section 52 of the Act is not attracted to the facts of the present case, this Court has to take into consideration the pleadings made and the evidence led by the parties. On appreciation of the evidence, both the Courts below have held that as per the defendants, Dharampal had made only oral averments. Since there is no document on the record to this effect as to how much credence can be given to the testimony of the defendants' witnesses is in the realm of appreciation. By applying canons of appreciation, both the Courts below held that due to demand on the part of the defendants, especially oral evidence of DW.3 Gajender Singh, there were no fetters on the rights of Dharampal to confer or transfer his property to the plaintiff. Regular Second Appeal No. 2981 of 2010(O&M) 8 This Court, in regular second appeal, will not tread on the path of re-appreciation and re-appraisal of the evidence. Concurrent findings of fact, returned by both the Courts below, suffer from no infirmity. The view formulated by both the Courts below is the one, which is possible on the appreciation of the evidence and this Court has no reason to substitute the same by its own opinion. Therefore, contention of learned arguing counsel that since the Bank had given loan to the Co-operative Society, this Court should also assume that Dharampal was a member of the Co-operative Society is an inference which is not possible on the facts of the case. No question of law arises for consideration of this Court. Hence, no interference is warranted in the present appeal and the same is hereby dismissed in limine. (Kanwaljit Singh Ahluwalia) Judge July 15, 2011 “DK”