RSA No. 1261 of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Cross Objection No.5-C of 1999 & RSA No. 1261 of 1997 Date of Decision: 19.04.2010 Sneh Lata & Anr. ..Appellants Vs. Rajeshwar Dass (Dead) through LRs. & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.C.B.Goel, Advocate with Mr.Manoj Sharma & Mr.Nitin Jain, Advocates, for the appellants. Mr. Vikas Suri, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) The plaintiff/appellants have filed this regular second appeal, against the judgment and decree dated 29.10.1996 passed by the learned Additional District Judge, Ambala in civil suit titled Sneh Lata & Ors. Vs. RSA No. 1261 of 1997 2 Rajeshwar Dass & Ors., wherein the appellants sought a decree for mandatory injunction directing the defendant/respondent No.1 for handing over the possession of House bearing No.5107-5107/1, Halwai Bazar, Ambala Cantt and for recovery of Rs.250/- per month on account of compensation/mesne profit for use and occupation since 28.11.1984, was ordered to be dismissed; whereas respondents have filed Cross Objection No.5-C of 1999. The facts leading to the filing of this appeal are that respondent No.1 had, in fact, filed suit No.106 of 1984 against the appellants for declaration to the effect that the plaintiff was owner in possession of the property in dispute to the exclusion of defendants with a consequential relief of restraining the defendants by permanent injunction from interfering in the peaceful possession and occupation of the said property. The case pleaded by respondent No.1 in his suit was that the suit property along with other property was owned and possessed by Hindu undivided family of Lala Behari Lal consisting of himself and his three sons i.e. Bhagwan Dass, Puran Chand and Lachhi Ram. After the death of Behari Lal, aforesaid property devolved upon all the three sons and ultimately on 10.1.1949 property was partitioned and suit property fell to the share of Hindu undivided family of Lachhi Ram and his two sons Rajeshwar and Brij Mohan plaintiff and defendant in the suit. Lachhi Ram father of the plaintiff and defendant was running Halwai shop in the suit property till the year 1952. Thereafter, plaintiff started doing the business of gold, silver and allied artificial jewellery and RSA No. 1261 of 1997 3 continued till the year 1971. In the year 1959 defendant No.1 left Ambala with the knowledge of defendant No.1 and father of the plaintiff and the plaintiff occupied the property in dispute as owner and he claimed that he had perfected his title by way of adverse possession. Possession of the plaintiffs in the suit filed by Rajeshwar Dass i.e. defendant No.1 was said to be hostile and adverse to defendant No.1 as he was said to be paying house tax since the date of occupation i.e. 1952 and was holding it as a owner. It was the case of respondent No.1 in the suit filed by him that since the year 1970, defendant No.1 never asserted his ownership to the property in dispute. Lachhi Ram died on 4.2.1983 and thereafter defendants No.1 and 2 at the instance of defendant No.4 and in connivance with defendant No.3 started interfering in the possession of the plaintiffs. Suit was contested by the defendant/appellants herein, by claiming that the suit property was not Hindu undivided joint family property of Behari Lal as it was purchased by him from his own funds. Stand of the defendant/appellants in the said suit was that Behari Lal was having 5 sons and not 3 sons as alleged in the plaint. Suit property and property No.5106 passed on to Bhagwan Dass, Puran Chand and Lachhi Ram sons of Behari Lal on the death of Behari Lal in the year 1943 by virtue of Will dated 26.7.1936 which was registered on 14.8.1936. Other two sons of Behari Lal i.e. Hera Lal and Nanak Chand were said to be separate from the family. Bhagwan Dass sold his share in the said property to Puran Chand and Lachhi Ram vide registered sale deed dated 10.1.1949 registered on 15.1.1949. Thereafter, property was partitioned between RSA No. 1261 of 1997 4 Lachhi Ram and Puran Chand, through partition deed dated 10.1.1949 under which property No.5106 fell to the share of Puran Chand and property in dispute fell to the share of Lachhi Ram. Thus, it was claimed that the property in dispute was not Hindu undivided joint family property. It was further the case of the defendant/appellants that Lachhi Ram executed a Will dated 10.7.1981 which was duly registered in favour of defendant No.2, his daughter-in-law and thereafter a gift deed was also executed in her favour. Thus, it was claimed that the appellant i.e. daughter-in-law was owner of the suit property. It was the case of the defendants that in the suit filed by Rajeshwar Dass respondent No.1, the plaintiff was only a licencee in the suit property after the death of Lachhi Ram on 4.2.1983 and in order to resolve the dispute between the plaintiff, on one hand and defendant No.2 on the other hand, the matter was referred to the Arbitrator but the plaintiff/respondent No.1 had cancelled arbitration agreement. Defendant No.3 had no interest in the property but only supported the assertions made qua the arbitration agreement and destruction thereof by respondent No.1. Replication was filed to the written statement and on the pleadings of the parties learned trial court framed the following issues:- 1. Whether the plaintiff is owner in possession of the premises in dispute as averred in the plaint? OPP 2. Whether the plaintiff is entitled for injunction as prayed? OPP 3. Whether the suit is bad for misjoinder of defendant No.3 and, if so its effect? OPP RSA No. 1261 of 1997 5 4. Relief. On appreciation of evidence learned trial court decided issue No.1 against respondent No.1. It was held by the learned trial court that the plaintiff/respondent had failed to prove his adverse possession over the property in dispute to claim ownership. The learned trial court also held that the plaintiff had failed to prove that the property was Hindu undivided family property in the hands of Lachhi Ram and therefore, the Will and gift deed were held to be valid. In view of findings on issue No.1, learned trial court held that plaintiff/respondent No.1 was not entitled to injunction. Issue No.3 was decided in favour of plaintiff/respondent No.1. However, in view of findings recorded on issues No.1 and 2 suit filed by respondent No.1 was ordered to be dismissed. On receipt of notice of filing of the suit the defendant/appellant herein had also filed a suit titled Sneh Lata Vs. Rajeshwar Dass claiming ownership of the suit property under gift deed executed in her favour and also seeking mandatory injunction directing respondent No.1 to hand over vacant possession of the premises. She also claimed mesne profits at the rate of Rs.250/- per month from the date of death of Lachhi Ram till the actual possession was handed over. In the suit filed by the plaintiff/appellant learned trial court had framed the following issues:- 1. Whether the plaintiff is entitled to injunction on the allegations contained in the plaint? OPP RSA No. 1261 of 1997 6 2. Whether the plaintiff is owner of the premises in dispute as averred in the plaint? OPP 3. Whether the defendant is occupying the premises in dispute as licencee. If so its effect? OPP 4. Whether the plaintiff is entitled to compensation/mesne profits for use and occupation of the premises in dispute since 28.11.1984. If so at what rate and to what amount? OPP 5. Whether the suit is liable to be stayed as averred in para No.1 of the additional pleas of the written statement? OPP 6. Whether the suit is not maintainable? OPD 7. Whether the suit is bad for non-joinder of necessary parties? OPD 8. Whether the suit is false and frivolous to the knowledge of the plaintiff. If so its effect? OPD 9. Relief. In view of the findings recorded by the learned trial court on issue No.1 in the suit filed by respondent No.1, learned trial court held that the appellant was entitled to mandatory injunction to seek possession. She was also held to be owner of the premises in dispute in view of the gift deed which was duly proved. On issue No.3, learned trial court was pleased to hold that the defendant i.e. respondent No.1 was occupying the premises RSA No. 1261 of 1997 7 as liencee and that his licence was cancelled by way of notice. On issue No.4, the appellant was held entitled to mesne profits at the rate of Rs.250/- per month as claimed. Issue No.5 was not decided in view of the fact that with the consent of the parties both the suits were consolidated. On issue No.6 suit was held to be maintainable. Suit was also held to be not bad for non-joinder of necessary parties. The learned trial court also decided issue No.8 in favour of the appellant. Consequently, the suit filed by Sneh Lata against Rajeshwar Dass was ordered to be decreed, while suit filed by Rajeshwar Dass was ordered to be dismissed. Rajeshwar Dass, respondent No.1, filed two appeals against the judgment and decree passed by the learned trial court in two suits i.e. one filed by respondent No.1 and another suit filed by the appellant which was ordered to be decreed. Learned lower appellate court affirmed the findings of the learned trial court in the suit filed by Rajeshwar Dass against the appellant. However, appeal filed by respondent No.1 against the judgment and decree passed in the suit filed by the appellant was allowed and suit for mandatory injunction was dismissed by recording a finding that the property in the hands of Behari Lal was Hindu undivided family property and after the partition of the suit property it became joint Hindu family property of Lachhi Ram along with the plaintiff and defendant No.1 and therefore, the learned lower appellate court held that Lachhi Ram could not have gifted away the suit property being ancestral in nature. RSA No. 1261 of 1997 8 In view of the findings recorded above, the suit filed by the appellant was ordered to be dismissed by holding that respondent No.1 was holding the property as co-sharer. Rajeshwar Dass, respondent No.1 did not challenge the judgment and decree passed by the learned lower appellate court vide which suit filed by him seeking declaration and ownership and injunction was ordered to be dismissed, though finding of learned trial court on issue No.1 was affirmed. However, he has chosen to file cross objections in this appeal filed by the appellant to support the decree passed in his favour. Mr.C.B.Goel, learned counsel for the appellants, contends that this appeal raises the following substantial questions of law for consideration by this court: 1. Whether the judgment and decree passed by the learned lower appellate court is contradictory on the face of it and therefore, perverse? 2. Whether in absence of challenge to the judgment and decree passed in the case titled Rajeshwar Dass Vs. Brij Mohan and others, respondents are barred by the principle of res judicata to challenge the finding with regard to the property being self acquired property of Lachhi Ram? In support of the substantial questions of law referred to above, learned counsel for the appellants has vehemently contended that once the RSA No. 1261 of 1997 9 learned lower appellate court has affirmed the findings on issue No.1 in the case tiled Rajeshwar Dass Vs. Brij Mohan and others, finding with regard to the property being ancestral undivided Hindu joint family, therefore, is on the face of it contradictory. The contention of the learned counsel for the appellants is that on appreciation of evidence learned trial court had recorded a positive finding that the property was acquired by Lachhi Ram under a Will from Behari Lal and thereafter part of the property was purchased by him from his brother Bhagwan Dass who bequeathed 1/3rd share along with Lachhi Ram. The contention of the learned counsel for the appellants, therefore, was that this finding of fact was affirmed by the learned lower appellate court while dismissing the appeal filed by respondent No.1 against the judgment and decree passed in the suit filed by him. Learned counsel for the appellants referred to the judgment passed by the learned lower appellate court where specific finding recorded by learned trial court on both the issues has been affirmed while dismissing the case of Rajeshwar Dass, respondent No.1. It was also contended by the learned counsel for the appellants that the finding of the learned lower appellate court is also perverse for the reasons that on the one hand learned lower appellate court held that respondent No.1 has failed to prove that the property was ancestral joint Hindu family property in the hand of Lachhi Ram, whereas on the other hand, merely by drawing a presumption of non- production of original Will, the court went on to hold that the property in the hands of Lachhi Ram and his sons after partition was joint Hindu family RSA No. 1261 of 1997 10 property along with his sons which according to the appellants cannot be sustained. The contention further is that, in any case, in view of the fact that the finding on issue No.1 in the case titled Rajeshwar Dass Vs. Brij Mohan and others having attained finality, finding would operate as res judicata against respondent No.1 and therefore, the judgment and decree passed by the learned lower appellate court deserves to be set aside and the suit filed by the plaintiff/appellants deserves to be decreed. Mr. Vikas Suri, learned counsel for the respondents, on the other hand, vehemently contended that once the Will was not proved the presumption that the property was joint Hindu family property was rightly drawn by the learned lower appellate court, therefore, no fault can be found with the findings recorded by the learned lower appellate court. The contention of the learned counsel for the respondents was that once the property was held to be ancestral joint Hindu family property learned lower appellate court rightly held that Lachhi Ram could not have gifted away the property in dispute in favour of appellant No.1 i.e. Smt.Sneh Lata wife of Brij Mohan. Once the gift deed is held to be invalid and Will was also not proved on record, then no other conclusion than the one drawn by the learned lower appellate court could be arrived at i.e. that respondent No.1 was holding the property in his own right as co-sharer of the property in dispute being coparcener along with Lachhi Ram and defendant. Learned counsel for the respondent, contends that once respondent No.1 filed cross objections to support the judgment and decree, finding recorded by the learned lower appellate court cannot operate as res RSA No. 1261 of 1997 11 judicata, as the cross objections shall be deemed to be an appeal against the finding recorded against respondent No.1 by learned lower appellate court. On consideration of matter, I find force in the contentions raised by the learned counsel for the appellants. It may be noticed here that though no issue was framed as to whether the property in the hands of Lachhi Ram was ancestral Joint Hindu family property but the learned lower appellate court proceeded on a presumption that both the parties were claiming ownership, and in view of the case set up by the respective parties, the only question is that whether the property in the hands of Lachhi Ram was ancestral coparcenary joint Hindu family property. In view of this fact the finding recorded by the learned trial court is to be taken to be a finding on the issue raised inter se between the parties. Once the learned trial court recorded a positive finding that the property was acquired by Lachhi Ram through the Will from Behari Lal and thereafter he had acquired certain property by way of purchase from his brother Bhagwan Dass it was to be treated to be self acquired property in the hands of Lachhi Ram and therefore, the gift in favour of the appellant, respondent No.1 could not be interfered with which resulted in making Sneh Lata as absolute owner of the property in dispute. Learned lower appellate court wrongly came to the conclusion that original Will was not produced. This finding is nothing but result of misreading of evidence on record. Statement of DW 5 i.e. Brij Mohan clearly shows that the original was produced in court and thereafter photo copy was placed on record. However, as the photocopy was not exhibited, RSA No. 1261 of 1997 12 it is not of much importance. In this case question whether the Will was produced or not is not at all material as the contention of the learned counsel for the appellants that the finding that the property was self-acquired property of Lachhi Ram would operate as res judicata as the respondent No.1 has not chosen to file any appeal against the dismissal of his appeal in the suit filed by him. This view finds support from the well settled law as reported in the case of Sumi Debi Vs. Prankrushma Panda AIR 1956 Orissa 68; judgments of Hon'ble Supreme Court in the cases of Sheodan Singh Vs. Daryao Kunwar Vs. AIR 1966 SC 1332 (1); Premier Tyres Limited Vs. Kerala State Road Transport Corporation, AIR 1993 SC 1202 and Ram Parkash Vs. Smt.Charan Kaur & Anr., AIR 1997 SC 3760. Even on merit, it may be noticed that it was for respondent No.1 to have proved that property was ancestral joint Hindu property in the hands of Lachhi Ram. But pleading in the plaint itself shows that the property could not be said to be ancestral as it was pleaded in the plaint itself that the suit property was partitioned between the parties. It is now well settled law that when a joint Hindu family property is partitioned then it loses status of joint Hindu family property and becomes self acquired property. This fact coupled with the fact that even some part of property was purchased, therefore, when self acquired property is mixed with the other, the whole property assumed the character of self acquired property. Thus, seen from any angle it has to be held that finding of the learned lower appellate court holding the property to be joint Hindu family RSA No. 1261 of 1997 13 property was perverse and in any case, is hit by the principles of res judicata, as it is not open to the respondent to claim it to be joint Hindu family property because of non-challenge to the decree passed in his case vide which suit filed by respondent No.1 against the appellant was dismissed. For the reasons stated above substantial questions of law framed are answered in favour of the appellant. Consequently, this appeal is accepted. The judgment and decree passed by the learned lower appellate court in civil suit No.107 of 1984 titled 'Sneh Lata Vs. Rajeshwar' is set aside and that of the learned trial court is restored but with no order as to costs. In view of the finding in appeal cross objections are also dismissed. 19.04.2010 (Vinod K.Sharma) rp Judge