HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 493 of 2002. Decided on: 28.5.2008. Kailash Chand ………Appellant. Versus Surinder Mohan and another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Anand Sharma, Advocate. For the respondents: Mr.G.D. Verma, Senior Advocate, with Mr.B.C. Verma, Advocate. V.K. Ahuja, J. (Oral): This is a regular second appeal filed by the appellant against the judgment and decree passed by the learned District Judge, Chamba, dated 11.9.2002, vide which he partly modified and affirmed the judgment and decree passed by the learned Senior Sub Judge, Chamba, dated 2.1.2002, decreeing the suit of the respondents/plaintiffs for partition. Briefly stated the facts of the case are that respondents as plaintiffs filed a suit for possession by way of partition as against the appellant/defendant. It ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - was alleged by the plaintiffs that they are having 7/8 share in the property comprised in Khasra numbers as detailed in the plaint, measuring 146 square yeards and 4 square feet, situated in Mohalla Charpat, Mohal Chamba. It was alleged that the suit property was jointly owned and possessed by the plaintiffs alongwith the defendant in which the defendant is having 1/8 share, whereas the plaintiffs are having 7/8 share. It was alleged that since there remains a dispute in between the parties, hence the suit for possession by way of partition filed by the plaintiffs. Defendant pleaded that Harisharan Dass, the father of the plaintiffs and the defendant, constituted a joint Hindu family with his father and the suit property is not included in the joint Hindu coparcenary property. It was denied that the suit property was still joint of the parties but a plea of family arrangement was taken. A plea of adverse possession, in the alternative, was also taken by the defendant. He also took up the plea that he got 1/3rd share by birth and 1/30th share by succession and he also challenged the revenue entries being wrong. However, a plea was raised that the share of the defendant be also separated by way of partition. The suit was tried by the learned trial Court which decreed the suit of the plaintiffs and it was held that the plaintiffs have got 7/8 share in the suit property which is still joint and the plaintiffs are entitled to get this share separated. These findings on appeal were affirmed by the learned First Appellate Court. However, it also modified the judgment of the learned trial Court in regard to Issue No.2 relating to court fee and directed that before making the - 3 - preliminary decree final, the learned trial Court shall appoint a Local Commissioner to assess the market value of the super structure over the suit land and the court fee shall be paid by the plaintiffs accordingly. I have heard the learned counsel for the parties and have gone through the record of the case. Two points were raised by the learned counsel for the appellant during the course of arguments. The first point raised was in regard to non-joinder of necessary parties. It was pleaded by the learned counsel for the appellant that the father of the parties namely, Harisharan Dass, had two sons, namely appellant and respondent No.1 and six daughters including respondent No.2 and since the remaining five daughters of late Shri Harisharan Dass were not made party to the suit, the suit was bad for non-joinder of necessary parties. Thus, it was submitted that once the other sisters of the parties have not been impleaded as party, no findings could be given in the present suit. The another point raised was that the plaintiffs have proved the relinquishment deed allegedly executed by other sisters in favour of their sister respondent No.2 and since the said relinquishment deed was not registered, therefore, it could not be legally acted upon and, therefore, the other sisters of the parties were required to be impleaded as party to contest the case. To substantiate his plea, the learned counsel for the appellant had relied upon an unreported decision of this Court in RSA No.21 of 2001, titled Manohar Lal Kapoor and others v. Nawal Kapoor, decided on 22.5.2008. In that case, the case was remanded to the learned trial Court for giving an opportunity to implead the other sisters as a party. However, the said decision, as will be clear, - 4 - was based upon the facts of that case and cannot be construed as laying any law because the facts of that case were considered while passing the order to implead the other sisters as party to the case. On the other hand, the learned counsel for the respondent submitted that the appellant has no locus standi to take this plea of necessary parties or non-joinder of necessary parties since he has never claimed that the shares of other sisters was given to him or that his share was likely to increase from 1/8 and once there was to be no change in his share, the dispute of partition, if any, cannot be said to be in between the respondents and the said five sisters. It was also submitted that the relinquishment deeds Ext.PW-3/A to Ext.PW-3/E have been proved in evidence, which were registered and they were legal documents and once the rights have been relinquished by the other sisters in favour of respondent No.2 and the appellant has not set up any claim in regard to the share of his other sisters, he has no locus standi to challenge these findings which are inter se the parties only. It was also pointed out by the learned counsel for the respondents that one of the sisters had appeared in the witness box and had supported the claim of the respondents that such relinquishment deeds were executed by her as well as by other sisters. Coming to the facts of the case, the learned trial court under Issue No.3 had given its findings that the suit was not bad for non-joinder of necessary parties. The only findings recorded by the learned trial Court are that the defendant has failed to show as to how the suit is bad for non-joinder of necessary parties and, therefore, this issue was decided against the defendant. A perusal of the findings recorded by the learned First Appellate Court on this - 5 - point shows that this plea was considered by the learned Appellate Court in para 30 of the judgment, which reads as under: “……………………………The remaining daughters of Harisharan Dass have executed relinquishment deed in favour of Kumari Brij Bala. The appellant did not adduce any positive, cogent and reliable evidence on record that other daughters of Harisharan Dass have not executed any relinquishment deed in favour of Kumari Brijbala.” A perusal of the statement of PW-3 Smt.Kavita, the sister of the parties, shows that she had proved the relinquishment deed executed by her as Ext.PW- 3/A and she has also proved the relinquishment deeds allegedly executed by her other sisters as Ext.PW-3/B and Ext.PW-3/C. According to these documents, these were registered deeds and there is nothing in the statement of PW-3 that these were not registered documents or could not be looked into and no questions were put up in regard to their registration or non-registration. It is, therefore, clear from the above discussion of the evidence that though it would have been appropriate if before filing the suit, the plaintiff had impleaded his other sisters also as party, who could have filed written statement admitting the claim of the plaintiffs. However, that was not done and the suit was filed by the plaintiffs basing their claim upon the relinquishment deeds which have been proved on the record of the case and the execution of these relinquishment deeds in favour of the plaintiffs does not affect the rights of the appellant since his share neither increases nor decreases by relinquishment of the share by the other sisters in favour of the plaintiffs. A perusal of the written statement filed by the defendant shows that they have never claimed that their sisters had given their property to them or their share will increase and he is entitled to more share than 1/8 as claimed by him. Once the defendant had not - 6 - set up any such plea or change in his share, to remand the case after so many years will not be proper particularly when the plaintiffs have proved that the shares were relinquished by their sisters in their favour and those relinquishment deeds have also been proved according to law and this do not affect the rights of the defendant in any manner. The dispute, if any, in regard to the validity of the relinquishment deeds can be in between the plaintiffs and the other sisters who executed these deeds and, therefore, present findings will not be binding upon the other sisters of the plaintiffs or their Legal Heirs and they are at liberty to challenge those findings since they were not party to the present dispute in between the plaintiffs and the defendant. Therefore, from whichever angle the facts of the case are looked into, non-impleading of the other sisters does not affect the rights of the defendant who has no right to challenge the relinquishment deeds executed in favour of the plaintiffs, which does not affect his rights and, therefore, the findings of the learned trial Court on this Issue No.3 in regard to necessary parties upheld by the learned First Appellate Court are liable to be affirmed. This plea has been considered since the appeal was admitted on substantial question of law at Sl.No.3, formulated at page No.13 of the paper book, and therefore, the findings have been given. Coming to the second argument raised by the learned counsel for the appellant, the appeal was admitted on substantial question of law No.7 formulated at page No.14 of the paper book in which findings of the learned lower appellate court have been challenged vide which the directions had been given in regard to court fee and jurisdiction. It was submitted by the learned - 7 - counsel for the appellant that the suit had not been properly valued and the learned trial Court could not have granted the relief in the absence of the findings in regard to court fee. The directions were given by the learned First Appellate Court for appointment of a Commissioner/Expert to give his report in regard to valuation and the learned trial Court to pass orders in that regard for payment of court fee before granting the final decree were challenged by the learned counsel for the appellant during the course of arguments. It was submitted by the learned counsel for the respondent that the findings had been given by the learned Appellate Court and the relief of final decree is to be granted only after payment of court fee and those findings cannot be said to be incorrect calling for an interference by this Court. Issue No.2 was framed in regard to the court fee and jurisdiction. The only findings recorded by the learned trial Court are that nothing was argued on behalf of the defendant as to how the suit is not properly valued for the purpose of court fee and jurisdiction and as such it was held that the defendant had failed to prove this issue. I have already mentioned above that those findings were modified by the learned First Appellate Court, who passed order for appointment of an Expert/Local Commissioner to assess the value which was to be payable by the plaintiff before granting the relief of final decree. To substantiate his point that the said order was sustainable, the learned counsel for the respondent had relied upon the decision in M.L. Subbaraya Setty and others v. M.L. Nagappa Setty and others, AIR 2002 Supreme Court 2066. A perusal of this decision shows that there was also the suit for partition. In regard to the valuation of the properties, it was - 8 - held that it has to be on the date of final decree and not prior to that. The observations made are relevant and are being reproduced below: “Ordinarily the date of valuation of the properties in a suit for partition, has to be the date of the passing of the final decree and not the date of filing of the suit for partition. In a given case, however, there may be exception of this general rule. It is a matter of common knowledge that such suits for partition take considerable time for disposal. There is a big time lag between date of filing of the suit and date of the decision thereof. There is also considerable lapse of time between passing of preliminary decree and passing of final decree. In the instant case the suit was filed in the year 1948, preliminary decree proceedings were finalized in 1971 by decision of the Supreme Court. Thereafter more than 30 years have lapsed, the parties are still no way near the final position. It would be absurd if it was to be held that the valuation of 1940 or 1948 should be taken. It is also possible that in a given case, the value of one property may appreciate drastically while not so in the case of other properties or it may even decline and some of the parties may be in possession of those properties. It has been the endeavour of the Courts in such suits to protect, preserve and respect the possession of the parties as far as possible. While so protecting, there has to be equalization of shares which has been recognized in law by making a provision for payment of Owelty.” Thus, the above decision applies to the present facts and in so far as the payment of court fee is concerned, it is mainly in between the parties claiming the relief and the court that proper court fee is paid and the ends of justice have been secured by the learned First Appellate Court by passing an order that the court fee shall be paid before granting the relief of final decree and, therefore, the learned trial Court is required to comply with the said order and due court fee should be paid before the grant of the final decree. The findings recorded by the learned First Appellate Court modifying the relief in regard to court fee and - 9 - jurisdiction do not, therefore, call for an interference by this Court and as such are liable to be affirmed. A perusal of the substantial questions of law framed at the time of admission shows that some other points were also raised on which the appeal was admitted but no arguments were raised by the learned counsel for the appellant and as such no findings are required to be recorded in that regard. At the fag end of the case, it was pointed out by the learned counsel for the respondents that an application registered as CMP No.955 of 2002 under Order 41 Rule 27 CPC was also filed by the appellant on which no specific submissions were made except that this may be allowed for the just determination of the case. I have gone through the contents of the said application and the documents enclosed therewith. No case is made out for allowing the application at this belated stage and to give an opportunity to the appellant to prove the documents attached with the application, which are not material for the just determination of the case. The application does not satisfy the requirement as provided under Order 41 Rule 27 CPC and as such the same is dismissed. In view of the above discussion, the appeal filed by the appellant as well as the application filed under Order 41 Rule 27 CPC stand dismissed. However, the parties are left to bear their own costs. May 28, 2008. (V.K. Ahuja), (TILAK) Judge.