HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 173 of 2000 Reserved on: 9.4.2010 Decided on: 21.4.2010 Virender Singh and another. ………Appellants. Versus Santosh Devi and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.Karan Singh Kanwar, Advocate. For respondent No.2: Mr.N.K. Thakur, Advocate. For respondents No.4&5: Mr.Ramakant Sharma, Advocate. V.K. Ahuja, J.: This is an appeal filed by the appellants against the judgment and decree of the court of learned District Judge, Sirmaur at Nahan, dated 13.3.2000, vide which the suit of the appellants/plaintiffs for partition of the suit land was dismissed by the learned trial Court. Briefly stated the facts of the case are that one Bhoop Singh was owner in possession of the suit property. On his death, it was inherited by his sons, namely, Roop Singh, Dalip Singh, Jaswant Singh and Virender Singh, and his daughters Jaiwanti, Sarswati, Bimla, Sita Devi, Padma Devi and his widow Har Devi in equal shares. It was alleged that the property is situated at Naya Bazar, ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - Nahan and some portion has been constructed while the remaining portion is still lying vacant. It was also alleged that the daughters of the deceased Bhoop Singh had relinquished their shares in favour of their brothers on the basis of mutation No.58 and their brothers became the owners of the suit property for their shares also. It was further alleged that Roop Singh, one of the owners, sold his half share in favour of defendant No.3 vide mutation No.83 and the remaining half share in favour of one Baldev vide mutation No.84. Later on, the said Baldev sold his share in favour of Vikas and Roopesh, defendants No.4 and 5 vide mutation No.102. It was also alleged that Dalip Singh sold his 9/40 share in favour of one Santosh Devi, wife of defendant No.1, vide mutation No.106. Jaswant Sigh died and his estate was inherited by his son Vikram Singh, daughter Kumari Lata and widow Shakuntla Devi, who sold their 9/40 share in favour of Rajesh Kumar vide mutation No.86, who further sold it to defendant No.2. Smt.Har Devi also died and her estate was inherited by her sons and daughters equally who have relinquished their shares in favour of plaintiff No.1 vide release deed dated 28th July, 1998. Thus, it was alleged that plaintiff No.1 has become owner to the extent of 12/40 share, whereas plaintiff No.2 is owner to the extent of 1/40 share while the defendants have stepped into the shoes of the vendees and have become the owners in the following proportions: - 3 - 1. Smt.Santosh Devi – 9/40 share 2. Sh.Rajesh Kumar – 9/40 share 3. Dalip Kumar – 9/80 share 4. Vikas and Roopesh jointly – 9/80 share. It was further alleged that the plaintiff as well as the defendants are in physical possession of the specific portions of the suit property. It was alleged that the defendants are aware that the suit property is not partitioned by metes and bounds and the defendants were requested not to raise any construction till the suit property is partitioned between them. But they are bent upon raising construction without effecting partition by metes and bounds, hence the suit filed by the plaintiffs for partition. It was alleged that the plaintiffs are having major share in the suit property and have established a prima facie case in their favour and as such they are entitled to a preliminary decree of possession by way of partition. Defendants No.1 and 3 pleaded that the suit property already stands mutually partitioned in between the parties and as such the suit was not maintainable. They did not dispute the allegations made regarding the sales or succession and relinquishment. They pleaded that the sales were made of specific portions by different vendors and they are exclusive owners qua the portions purchased by them which are in their possession and, therefore, the plaintiffs are estopped from filing the suit for partition by their act and conduct. - 4 - On the pleadings of the parties, the following issues were settled by the learned trial Court: 1. Whether there has been a family and mutual partition between the parties, as alleged by defendants No.1 and 3? If so, its effect. OPD 1&3. 2. Whether the suit is bad for non-joinder and mis-joinder of necessary parties, as alleged? OPD-1&3. 3. Whether the plaintiffs are estopped to file the present suit by their own act and conduct, as alleged? OPD-1&3. 4. Whether the suit of the plaintiffs is liable to be dismissed with special heavy costs under Section 35-A C.P.C., as alleged? OPD 1&3. 5. Relief. The parties led their evidence and the learned trial Court vide its impugned judgment decided issues No.1, 2 and 4 as against the defendants and issue No.3 was decided in their favour and against the plaintiffs and consequently the suit of the plaintiffs was dismissed. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellants were that the suit property had not been partitioned in between the parties and the learned trial Court, though had given its findings that there has been a mutual partition and the parties are in respective possession, but the findings of estoppel have been wrongly given against the plaintiffs under Issue No.3 and - 5 - accordingly the suit was wrongly dismissed by the learned trial Court. It was also submitted that the defendants had become owners by purchase of shares only in the joint property and not of any specific portion and as such, the plaintiffs were entitled to the decree for possession by way of partition. It was also submitted that since the agreements in question Ext.D-2 and Ext.D-3 were never registered which required compulsory registration and, therefore, they could not have been relied upon by the learned trial Court in coming to its findings which are liable to be reversed accordingly. It was also submitted that plaintiff No.2 is not a party to these agreements and as such she is not bound by these agreements. On the other hand, the learned counsel for the respondents had supported the impugned findings of the learned trial Court for the reasons recorded therein. It was also submitted that plaintiff No.1 admits that the possession of a specific portion was taken by the vendees. He also admits the execution of documents Ext.D-2 and Ext.D-2 in his statement and all the persons were in possession of specific portions, which they had purchased and there was no right of plaintiff No.2 in the suit property and as such it does not affect the merits of the case if she was not a party to the agreements Ext.D-2 and Ext.D-3. It was also submitted that they are not the documents of title and as such they did not require compulsory registration and they can be considered for collateral purposes to determine the question as to who was - 6 - in possession. It was also submitted that there are no assertions made by the plaintiffs in the plaint or in evidence that the defendants had raised their construction beyond their share or that they were in possession of lesser share and as such they were entitled to partition. It was further submitted that this plea has not been taken in grounds of appeal that the documents in question require compulsory registration and no useful purpose will be served by partition when the parties are in possession of their respective shares and there is no assertions or proof that the defendants are in possession of more share and as such the findings of the learned trial Court do not call for an interference by this Court. On appraisal of the pleadings of the parties and the evidence led by the parties, it is not disputed as to who was the previous owner, as to who succeeded to the property and as to how the defendants became owners by way of purchase. The shares had been specified by the plaintiffs in para-3 of the plaint and there are specific pleadings of the defendants that the allegations regarding the sales are not disputed so also the same regarding the succession and relinquishment are also not disputed. This clearly shows that there is no dispute in between the parties as to how they succeeded to their shares or how they became owners and what are the shares of both the parties in the suit property, which is entered in joint ownership and possession of the parties. Thus, the main question which arises for consideration is as to whether - 7 - the plaintiffs are entitled to partition and as to whether there are assertions and proof that the defendants are in possession of more share than what they own and since the plaintiffs are in possession of lesser shares, they are entitled to possession by way of partition or not. The learned trial Court had concluded under Issue No.1, after referring to the evidence led by the parties, that the plaintiff and his brothers have been in possession of the specific portions of the land and they dealt with those portions as exclusive owners. It has also been concluded by the learned trial Court after making a reference to the evidence that they gave exclusive possession to the vendees and similarly, the vendees came in possession of these portions as exclusive owners. A perusal of the agreement in question Ext.D-2 shows that it is dated 26.2.1998 and was executed in between plaintiff No.1 Virender Singh and Balbir Singh. It was mentioned therein that the plaintiff was a co-sharer in the property, while Balbir Singh was a tenant and was running a Dabha in the property and deed of settlement was arrived at in between the parties. It was agreed that the newly constructed wall shall remain with Balbir Sigh, whereas the remaining portion from the newly constructed wall towards the college side shall be given to Virender Singh and possession has already been handed over to him. It was clearly mentioned that Balbir Singh shall be at liberty to construct his portion which has remained with him and shall also be entitled to construct other storeyes over this - 8 - portion and Virender Singh will not interfere in the physical possession of the said Balbir Singh. A perusal of the agreement Ext.D-3 Ikrarnama also shows that it was entered into in between Virender singh, Rajesh Kumar, Dalip Kumar, defendant No.3, Vikas and Roopesh, defendants No.4 and 5, and it was mentioned that they are joint owners of the property and a reference was also made to the specific portions in possession of these parties. The settlement was made in regard to path and projection and Virender Singh shall be entitled to get his ownership entered in regard to the share relinquished by Rajesh Kumar and Balbir Singh in Khasra No.127 and the parties have taken separate possession in consideration of the settlement arrived at in between the parties. The learned trial Court had referred to both these documents and their contents in detail in the judgment and needless to say that the plaintiff himself had admitted the exclusive possession of the parties and also agreed not to claim his rights over these portions. Similarly, the defendants admitted the exclusive rights of the land or the portions in possession of Virender Singh, plaintiff No.1. The plaintiff Virender Singh himself had admitted the execution of these documents in his statement as PW-1 that all the four brothers had inducted separate tenants on the separate four shops in question which were in their possession. He admitted that the agreement Ext.D- 2 was executed by him and Balbir Singh and was signed by him and he also reiterated the contents of the agreement - 9 - qua the leaving of one shop by Balbir Singh and giving of land in front of his shop to Balbir Singh. He also admitted that Balbir Singh constructed the new shop which leads to the inference that this agreement was acted upon. Similarly, he admitted the execution of the document Ext.D- 3, which refers to the specific portions in possession of the parties and as such the plaintiff was bound by both the agreements in which he has admitted the specific portions in possession of the defendants. In his statement as PW-1, the plaintiff has failed to be specific or prove that he was in possession of lesser share and as such was entitled to the possession by way of partition. Coming to the question that plaintiff No.2 Smt.Indira Devi widow of Roop Singh was not a party to these settlements Ext.D-2 and Ext.D-3, in his statement as PW-1 Virender Singh, plaintiff, has nowhere stated if plaintiff NO.2 still owns any share and to what extent or that she was in possession of the lesser share and as such was entitled to the possession. It follows from the above discussion that the agreements in question Exts.D-2 and D-3 had been rightly relied upon by the learned trial Court to hold that the parties are in separate possession of their specific shares and there is nothing to conclude that they are in possession of lesser shares and hence they are entitled to the decree for possession by way of partition. The documents in question can be looked into for collateral purpose for determining the possession of the parties and, - 10 - therefore, they did not require compulsory registration as was argued by the learned counsel for the appellants. The learned trial Court had rightly concluded on the basis of the evidence of the parties that the plaintiffs are estopped by their own act and conduct from filing the suit for partition and those findings do not call for any interference by this Court. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellants, which is dismissed accordingly. CMP No.240 of 2001: This judgment shall also dispose of the application filed by the applicant/appellants under Order 39 Rule 2-A of the CPC. The allegations made by the appellants were that respondent No.2 is liable for action under Order 39 Rule 2-A read with Section 12 of the Contempt of Courts Act, 1971 for disobeying the orders of this Court, dated 7.11.2000, passed in CMP No.235 of 2000. It was alleged that respondent No.2 Vinod Kumar had violated the orders by raising construction on the disputed property. It was also alleged that the construction has been raised on the walls of the top floor and as such he is liable to be held guilty and punished accordingly. The respondent denied the allegations. On the pleadings of the parties, the following issues were settled by this court: 1. Whether respondent No.2 Vinod Kumar is guilty of having dis-obeyed the interim order passed - 11 - by this Court on 5.7.2000 as affirmed and made absolute on 7.11.2000? OPA 2. Relief. In support of these issues, the applicant examined two witnesses, namely, Rajidner Singh and Jagmohan Singh, AW-1 and AW-2 respectively. The respondent also examined three witnesses, namely, RW-1 Vinod Kumar, respondent himself, RW-2 Roopesh Agarwal and RW-3 Ahmad Ali. I have heard the leaned counsel for the parties and have gone through the record of the case. A perusal of the statement of AW-1 Rajinder Singh shows that he is the General Power of Attorney of both the applicants and stated that he knows the facts of the case. He stated that the court had directed on 5.7.2000 to maintain status quo, which order was modified on 7.11.2000. He also specified that Vikas and Roopesh, respondents, were permitted to complete the construction subject to filing of the bond but other parties were not to raise any construction. He stated that the respondent Vinod Kumar started construction of his third storey in February, 2001 and he went to the site alongwith one Jagmohan and asked him to stop the construction and also informed him about the orders passed by the court but he proceeded with the construction. He admitted that both the applicants are able to make statement and, therefore, the statement of this witness has to be taken in his own right and not as a party to the case. He did not state as to how - 12 - much construction had already been raised by the respondent prior to that date and he denied his knowledge in case the respondent had got any map approved from the Municipal Council. He denied the suggestion that the construction had already been completed before that date. He admitted that he had not informed the police or any other authority in regard to the construction so raised. His statement was sought to be substantiated by the statement of AW-2 Jagmohan Singh and his cross examination shows that he is the brother-in-law of AW-1 and his statement does not prove that this construction was raised by the respondent and on which particular date or on which particular portion the construction was raised. To rebut the evidence, the respondent Vinod Kumar examined himself as RW-1 and he stated that on receipt of the order, the construction was stopped by him and the same is lying in the same state and the doors are yet to be fixed, the walls are yet to be plastered and the floors are yet to be laid. His statement was sought to be substantiated by the statement of RW-2 Roopesh Aggarwal and RW-3 Ahmad Ali. The proceedings under Order 39 Rule 2-A are quasi criminal in nature and the evidence led to prove these allegations has to be more than what is required in a civil case. In a civil case, the court can proceed on the basis of probabilities of evidence but in a criminal case, the evidence has to be proved beyond any reasonable doubt and since these proceedings are quasi criminal in nature - 13 - therefore, the standard of proof required is more than what is required in a civil case. The evidence led by the applicants, thus, cannot be said to be of the standard required to prove these allegations since it was required of them to have specifically proved as to when the construction was raised by the respondent, to what extent and the evidence led is not sufficient to prove the assertions made by the applicants in his application. Keeping in view the nature of the evidence led by the applicants and the fact that they have failed to prove these allegations, issue No.1 is decided as against the applicants and in favour of the respondent and consequently, the applicants are not entitled to any relief as prayed for. The application filed by the applicants is dismissed accordingly. April 21, 2010. (V.K. Ahuja), (TILAK) Judge.