IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 544 of 2001. Reserved on: 26.05.2011. Decided on: 23.06.2011. _____________________________________________________ Begi and others. …Appellants. -Versus- Prem Kumar. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellants. : Mr. Y.P.S. Dhaulta, Advocate. For the respondent. : Mr. Rajeshwar Thakur, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 16.08.2001, passed by the learned District Judge, Kullu, H.P. in Civil Appeal No. 09 of 2001. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake), had instituted a suit against the appellants-defendants (hereinafter referred to as ‘the defendants’ for brevity sake) for declaration with consequential relief of injunction. According to the plaintiff, the defendants were recorded owners in possession of the land, as detailed in the plaint, situated in Phati and Kothi Manali, Tehsil and District Kullu, H.P. to the extent of 7/17 shares, equivalent to 0-7-10 biswas and Shri Hukam Ram, S/o Shri Khim Dass, 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - husband of defendants No. 1 and 2, namely, Smt. Begi and Smt. Karmi, was owner in possession ½ share of the land measuring 1- 0-0 bighas, incorporated in the copy of Jamabandi for the year 1963-64 of Phati and Kothi Manali. Shri Hukam Ram, predecessor-in-interest of the defendants, vide agreement dated 07.05.1977, Mark-A entered into an agreement with the plaintiff, whereby, he delivered the possession of the land measuring 0-7- 10 biswas out of the aforesaid land in favour of the plaintiff for the purpose of construction of two storeyed building comprising of 8 rooms, i.e., four rooms in each floor for a period of three years and after the construction of the aforesaid building, Hukam Ram was to execute and register a sale deed with respect to ½ share of the aforesaid land measuring 0-7-10 biswas and also the building constructed thereon in favour of the plaintiff in lieu of the expenses to be incurred by the plaintiff for the construction of the building. Consequently, the plaintiff constructed two storeyed building comprising of 8 rooms as per the agreement. Thereafter, the plaintiff and Hukam Ram decided to construct additional accommodation in the existing 8 rooms building and to run the hotel business in the partnership and accordingly, the plaintiff was authorized to make necessary arrangements and to make funds for the same. Accordingly, the plaintiff constructed four more rooms and two dining halls in the existing building by spending huge amount from his own sources and also by raising loan of `1,10,000/- from the H.P. State Financial Corporation Ltd., Shimla. Hukam Ram also executed a General Power of Attorney in favour of the plaintiff in this respect. Hukam Ram and plaintiff decided to run the hotel business in partnership and - 3 - accordingly, the partnership deed dated 29.11.1980 was entered into between them. According to the partnership deed dated 29.11.1980, Hukam Ram admitted and accepted that the plaintiff has constructed the building of Hotel Mountesque, Manali (hereinafter to be referred as ‘Hotel’) consisting of 12 rooms, two dining halls, bath-rooms and Laboratories and became partners of the same in equal shares. The loan was returnable from the income of the hotel and in lieu of the expenses incurred by the plaintiff, Hukam Ram agreed to transfer ½ share of the land measuring 0-7-10 biswas and ½ share of the hotel in favour of the plaintiff. It was further agreed upon by Hukam Ram that in case of his failure to transfer ½ share of the land and hotel, the plaintiff shall be entitled to get the sale deed executed and registered through court of law. Subsequently, Khasra No. 2260/1813 was bifurcated due to some acquisition of the portion of land, as a result of which, the share of Hukam Ram was reduced to 7 biswas. Hukam Ram expired in the year, 1993. The defendants inherited his estates and stepped into the shoes of Hukam Ram. The H.P.F.C. loan was not cleared during the life time of Hukam Ram and, as such, ½ portion of the land and hotel could not be transferred in favour of the plaintiff. However, after the death of Hukam Ram, the defendants started denying the partnership and agreement, as entered into by the plaintiff with Hukam Ram. After the death of Hukam Ram, the plaintiff further liquidated the loan of H.P.F.C. to the extent of `25,000/-. It is in these circumstances, the present suit was filed. 3. The suit was contested by the defendants by filing written statement. According to defendants No. 1 and 2, they had - 4 - become owners of the aforesaid land to the extent of 1/17 share and defendant No. 3 was owner in possession of 1/17 share in Khasra No. 2260/1813 as a result of partition between the defendants. According to them, Hukam Ram was owner in possession only to the extent of 2 biswas and not of 7 biswas. According to them, as per agreement dated 07.05.1977, the plaintiff failed to construct two storeyed building consisting of 8 rooms. Thereafter, the agreement was rescinded mutually and instead, the plaintiff and Hukam Ram decided to enter into a partnership and jointly to construct the building on the aforesaid land measuring 2 biswas and the plaintiff agreed to advance loan, which was to be repaid from the partnership business of the hotel. It was admitted that the agreement dated 29.11.1980 was entered into between Hukam Ram and the plaintiff, whereby Hukam Ram agreed to sell ½ share out of two biswas of land and the building and allegations to the contrary have been denied. It was denied that 0-7-10 biswas land was handed over to the plaintiff by Hukam Ram for the purpose of construction of the building. It was admitted that a loan of `1,10,000/- was raised from H.P.F.C. by the plaintiff. It was denied that four rooms were constructed by the plaintiff and it was submitted that the same were constructed by Hukam Ram, including two dining-halls. According to them, the cost of the building was `15 lacs, which was met by the aforesaid Hukam Ram individually and plaintiff only contributed a sum of `68,000/-. It is admitted that the hotel in question was registered in the name of the plaintiff, however, it is alleged that the same has been wrongly registered in the name of plaintiff at the back of Hukam Ram. It is further stated that after the death of - 5 - Hukam Ram on 28.04.1993, the entire estate including the hotel has been inherited by the defendants in equal shares. It is further stated that after the completion of hotel, Hukam Ram asked the plaintiff to purchase ½ share of the building and the land underneath, as agreed upon between them, but the plaintiff expressed his inability to purchase the same and instead, executed a partnership deed with Hukam Ram on 29.11.1980, Ex. PW-2/A. It is further stated that after the death of Hukam Ram, plaintiff demanded a sum of ` One lac from defendant No. 3 due to him from Hukam Ram, but since defendant No. 3 was not in a position to pay such amount in a short notice, it was agreed that 11 rooms of the building falling in the share of the defendants, should be given to the plaintiff for a period of one year to satisfy his claim and an agreement dated 15.03.1994 was also executed. Thereafter, another 11 rooms were given on contract to the plaintiff from 3/95 to 3/96 for a sum of ` 30,000/- towards the satisfaction of his dues. It was submitted that the building in question was owned and possessed by the defendants being absolute owners of the same and the plaintiff has nothing to do with it. 4. Plaintiff filed the replication. Trial Court framed the issues on 21.11.1998 and 13.07.2000. The suit was decreed on 15.12.2000, whereby the defendants were directed to execute and register the sale deed in favour of the plaintiff in respect of half share of the building of Hotel Mountesque and the half share of the land underneath the Hotel as per agreements Ex. PW-2/A and Ex. PW-7/B within thirty days from the date the plaintiff liquidates the remaining loan of H.P.F.C. - 6 - 5. The defendants preferred an appeal before the learned District Judge, Kullu. He dismissed the same on 16.08.2001. Hence, this Regular Second Appeal. This Regular Second Appeal was admitted on the following substantial questions of law on 26.02.2002:- 1. Whether the suit of the plaintiff is barred by time? 2. Whether the suit of the plaintiff is bad in view of Section 16 (c) of the Specific Reliefs Act, 1963? 3. Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction? 6. Mr. Y.P.S. Dhaulta, learned counsel for the appellants has vehemently argued that suit of the plaintiff was barred by limitation and was not maintainable in view of Section 16(c) of the Specific Reliefs Act, 1963. According to him, the suit was not properly valued for the purpose of Court fee and jurisdiction. 7. Mr. Rajeshwar Thakur, learned counsel for the respondent has supported the judgments and decrees passed by both the Courts below. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 10. Plaintiff has appeared as PW-1. According to him, the land underneath the hotel was owned and possessed by Hukam Ram and after his death, the same has been inherited by the - 7 - defendants. According to him, Hukam Ram has entered into an agreement with him for the purpose of construction of two storeyed building comprising of 8 rooms. According to him, Hukam Ram further agreed that after the construction of aforesaid building, half of the building and the land underneath would be sold to the plaintiff by a registered sale deed. This agreement was entered into on 07.05.1977. It was scribed by Halpu Ram in the presence of witnesses Revat Ram and Palzore. The contents of the same were admitted to be correct by Hukam Ram. He has further stated that after construction of the building, he alongwith Hukam Ram decided to convert it into hotel and it was also decided that 8 rooms, including two dining halls should be added to it. Accordingly, Hukam Ram executed a power of attorney in his favour and thereafter, he took a loan of ` 1,10,000/- from HPFC and he also spent a sum of ` 68,000/- from his pocket and constructed 8 rooms in each storey, including two dining halls and thereafter, he entered into an agreement on 29.11.1980. According to him, he has spent a sum of ` 70,000-80,000/- on 8 rooms and a sum of ` 68,000/- was spent thereafter. Ultimately, he constructed 22 rooms of the hotel. Out of them, some of the rooms were constructed from the income of the hotel and some were constructed from his own expenses. He further stated that Hukam Ram expired suddenly and thereafter, he entered into an agreement with Tek Ram, being son of Hukam Ram, which was written by the petition writer in the presence of witnesses Gautam and Namyal and was duly signed by defendant No. 3. He further stated that as per the aforesaid agreements, he was in possession of half of the hotel and he was also entitled to execute the sale - 8 - deed in respect of the half of the hotel and also half of the land underneath the hotel. He was ready and had been requesting Hukam Ram and now the defendants to execute the sale deed. He has stated in cross-examination that the aforesaid building has been constructed over 7 biswas of land. He has further clarified that he started the construction of the building in the month of May, 1997. He also got the maps approved. According to him, he also orally divided the rooms in the year, 1979 and the rooms on the Western side were occupied by him and the rooms on the Eastern side were occupied by Hukam Ram. He further stated that he has also repaid the loan of HPFC and only a sum of ` 9,000/- remained to be paid. According to him, he constructed additional six rooms and two bath-rooms. He denied the suggestion that defendants No. 1 and 2 were owners of 11 rooms of the hotel and defendant No. 3 was owner of remaining 11 rooms. He also deposed that after the death of Hukam Ram, he further paid a sum of `42,000/- to `45,000/- towards the loan of HPFC. According to him, Hukam Ram had not spent any money on the construction of the building. 11. PW-2 Chuhru Ram has been examined to prove the agreement which was termed as partnership deed, Ex. PW-2/A, dated 29.11.1980. According to him, it was written in the presence of witnesses Prem Chand Thakur, Advocate and Dola Ram. The contents of the same after writing this document were read over and explained to the parties, who after admitting the same to be true, put their signatures thereon. According to him, the entry of this agreement also appears in his register at Sr. No. 1232, dated 29.11.1980. - 9 - 12. PW-3 Shri P.C. Thakur is a marginal witness to deed Ex. PW-2/A, dated 29.11.1980. According to him, he had inadvertently put his signatures on the duplicate copy of Ex. PW- 2/A and could not put his signatures on the original. In his cross- examination, he has clarified the situation and has admitted that he has put his signature on the duplicate copy of Ex. PW-2/A as a witness, but inadvertently forgot to put his signature on the original. However, he has stated that Ex. PW-2/A was written in his presence at the instance of plaintiff and Hukam Ram and after admitting the same to be true, they put their signatures thereon. He further deposed that by mistake he could not put his signature on Ex. PW-2/A. 13. PW-4 Ram Prashad (Dealing Hand, House Tax Nagar Panchayat, Manali) has been examined to prove the receipts of house-tax and bill for the year 1997-98, the copy of which is Ex. PW-4/A. 14. PW-5 Bihari Lal (Registration Clerk, T.O., Kullu) has produced the summoned record to prove Petition No. 85, dated 29.11.1980. 15. PW-6 Pritam (Sr. Assistant HPFC) has deposed that as per his record, a loan of `1,10,000/- was sanctioned in favour of Hotel Mountesque, which was to be run in partnership with plaintiff and Hukam Ram. According to him, the repayment of the loan was also made in the name of aforesaid hotel. According to him, as per the record, Hukam Ram has mortgaged his land bearing Khata No. 151 Kr. No. 2260/1813 with HPFC. 16. PW-7 Naranjan Dass (Document-Writer) has been examined to prove the agreement dated 15.04.1994, entered into - 10 - between the defendant No. 3 and plaintiff. He has stated that this agreement has been entered in his register at Sr. No. 225 dated 15.03.1994, the extract copy of which is Ex. PW-7/A, which is the copy of original Ex. PW-7/B. According to him, the agreement Ex. PW-7/B and Ex. PW-7/A were written at the instance of Tek Ram and the plaintiff. He has denied that agreement Ex. PW-7/B was got executed from defendant No. 3 by misrepresentation. 17. PW-8 Gautam Ram is the another marginal witness of agreement Ex. PW-7/B. He deposed that agreement Ex. PW-7/B was entered into between the parties, which bears his signature. 18. Defendant No. 3 Tek Ram has appeared as DW-1. According to him, he alongwith other defendants, was joint owner in possession of the land alongwith Hukam Ram, which was subsequently partitioned and his father Hukam Ram was in possession of only two biswas of land. According to him, plaintiff did not construct two storeyed building consisting of 8 rooms. According to him, about 14/15 lacs of rupees were spent on the hotel and, out of which, the plaintiff has spent only ` 68,000/-. He denied the suggestion that his father ever agreed to sell half of the building to the plaintiff. According to him, after the death of Hukam Ram, the partnership between the plaintiff and Hukam Ram has come to an end. He further stated that after the death of Hukam Ram, the defendants No. 1 to 3 were in possession of the hotel as per their shares. He further stated that as per understanding with the plaintiff, 11 rooms of the hotel were given on contract to the plaintiff for one year for a sum of `One lac and thereafter, for another one year, 11 rooms were given to the plaintiff for ` 30,000/-. According to him, from April, 1995, he - 11 - took over the entire management of the hotel. He has denied that he ever entered into an agreement with the plaintiff. He was not aware whether any power of attorney was given to the plaintiff by his father to construct the hotel. However, he has admitted that the plaintiff took a loan of ` 1,10,000/- from H.P.F.C. and he also spent a sum of ` 68,000/- from his pocket. He was not aware in which language, his father used to sign. He has stated that he was the only son of his father. 19. What emerges from the evidence led by the parties, is that the initial agreement was entered into between plaintiff and Hukam Ram on 07.05.1977, Mark-A. Mr. Y.P.S. Dhaulta, learned counsel for the appellants has vehemently argued that Ex. PW- 2/A, dated 29.11.1980 was a partnership deed and not an agreement, as held by both the Courts below. The execution of document Ex. PW-2/A, dated 29.11.1980 between the plaintiff and Hukam Ram is not disputed by the parties as per the written statement. Though defendant No. 3 has feigned his ignorance about the agreement dated 29.11.1980 entered into between the defendants and his father, however, it is evident from the statements of PW-1, PW-2 and PW-3 that Ex. PW-2/A, dated 29.11.1980 was duly proved. PW-2 Shri Chuhru Ram has scribed the document. He has deposed that partnership deed Ex. PW-2/A was written by him at the instance of plaintiff and Hukam Ram in the presence of PW-3 Prem Chand Thakur and Dola Ram. The contents of the same were read over and explained to the parties and after admitting the same to be true, they put their signatures thereon. The same was registered at Sr. No. 1232 on 29.11.1980. - 12 - 20. PW-3 Shri P.C. Thakur has also deposed that Ex. PW- 2/A was written in his presence at the instance of plaintiff and Hukam Ram and after admitting the same to be true, they put their signatures thereon. Though PW-3 Shri P.C. Thakur has admitted that he could not put his signatures on the original, however, he has stated that it was only due to mistake and he has put his signatures on the duplicate copy of Ex. PW-2/A. It is evident from the recitals of Ex. PW-2/A that though it is captioned as partnership deed, but it was an agreement entered into between plaintiff and Hukam Ram. This document was never registered under the Partnership Act. According to the contents of Ex. PW-2/A, Hukam Ram permitted the plaintiff to raise certain construction by raising a loan amount and he also spent his own money. It is in these circumstances that the plaintiff raised a loan of ` 1,10,000/- and he also spent a sum of ` 68,000/- from his own pocket. There is no evidence on record that Hukam Ram has spent any money for the construction of hotel. The hotel business was to run jointly till the loan amount of the construction was liquidated. After the liquidation of the loan amount, Hukam Ram and plaintiff had divided the profit in equal shares and both of them were owner in possession of the land equally to the extent of half share. It is, thus, proved that the document Ex. PW-2/A, dated 29.11.1980 was not a partnership deed, but was an agreement, stipulating certain conditions. Plaintiff has also entered into an agreement with defendant No. 3 on 15.03.1994 vide Ex. PW-7/B. It was agreed on the basis of agreement dated 15.03.1994 that 11 rooms of the building falling in the share of the defendants be given to the plaintiff for a period of one year to - 13 - satisfy his claim. Thereafter, another 11 rooms were given to the plaintiff on contract from March 1995 to March 1996 for a sum of ` 30,000/- towards the satisfaction of his dues. The defendants have not led any evidence to prove that the agreement dated 15.03.1994 was obtained by way of fraud and mis-representation by the plaintiff. Ex. PW-7/B has been scribed by PW-7 Naranjan Dass, Document-Writer. According to him, it was scribed by him at the behest of Tek Ram and Prem Kumar. The contents of the same were read over and explained to the parties. PW-8 Gautam Ram was the attesting witness to the agreement dated 15.03.1994. It is duly established that the land was owned by Hukam Ram, on which the building has been raised. The plaintiff has constructed the building by taking loan from Financial Corporation. He has also spent a sum of ` 68,000/- from his own pocket. Plaintiff was always ready and willing to perform his part. Hukam Ram has died in the year 1993. It is in these circumstances that agreement dated 15.03.1994 was entered into by the plaintiff with defendant No. 3. The defendants have not implemented the terms and conditions, as contained in Ex. PW- 2/A, dated 29.11.1980, rather they have pleaded that Hukam Ram was owner of only two biswas of land, which is contrary to record. It is clear from Ex. PW-2/A that Hukam Ram and plaintiff decided to run the hotel business in partnership. The loan was returnable from the income of the hotel and in lieu of the expenses incurred by the plaintiff, Hukam Ram agreed to transfer ½ share of the land measuring 0-7-10 biswas and ½ share of the hotel in favour of the plaintiff. It was further agreed upon by Hukam Ram that in case of his failure to transfer ½ share of the land and - 14 - hotel, the plaintiff shall be entitled to get the sale deed executed and registered through court of law. The defendant No. 3 has bound himself to execute PW-7/B, dated 15.03.1994. As noticed hereinabove, Ex. PW-2/A, though captioned as partnership deed, but was an agreement entered into between Hukam Ram and the plaitniff. 21. Mr. Y.P. S. Dhaulta, learned counsel for the appellant has also argued that the present suit was barred by limitation. Hukam Ram has died on 23.04.1993. According to Mr. Y.P. S. Dhaulta, the cause of action has arisen to the plaintiff immediately after the death of Hukam Ram, i.e., on 23.04.1993. The cause of action has arisen to the plaintiff only after the clearance of the debt obtained for raising construction of the building. It was only after the loan was cleared that the plaintiff had to become deemed co-owner to the extent of half share and Hukam Ram has bound himself to execute the deed of half share in favour of the plaintiff. It was on his failure to do so, which entitled the plaintiff to file the suit. The deed was to be executed after satisfaction of the loan amount. The loan was not returned till the date of death of Hukam Ram. The receipt of payment