R.S.A.No. 2817 of 1983 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2817 of 1983 (O&M) Date of decision: 17.1.2011 Mool Chand Rastogi through legal representatives ......Appellant Versus Surinder Kumar Rastogi and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Amit Jain, Advocate, for the appellant. None for respondents No.1 and 2. Mr.Adarsh Jain, Advocate for respondent No.3. **** SABINA, J. Plaintiff filed a suit for possession or in the alternative suit for recovery of ` 1,90,000/- against the defendants. The case of the plaintiff, in brief, was that plaintiff and defendants No.1 and 2 were related to each other. Defendants No.1 and 2 had a factory under the name and style Indian Metal Industries located in plot o.22-A, Industrial Township, Faridabad. Plaintiff was requested to establish a factory at Faridabad by defendants No.1 and 2. Plaintiff accepted the offer and took on lease a vacant plot of land measuring 190 feet R.S.A.No. 2817 of 1983 (O&M) 2 North to South and 85 feet East to West, measuring 1795 square yards from defendants No. 1 and 2 for eleven months on 25.10.1961. Plaintiff was given the possession of the vacant land. Plaintiff raised construction over the vacant plot after submitting requisite plan to the notified area committee. Plaintiff installed requisite machinery in the factory and incurred expenses of ` 1,75,000/-. Plaintiff also got the factory insured with New Great Insurance Company on 16.4.1962. Defendant No.1 requested the plaintiff that he may be allowed to keep sixteen machines in the plaintiff's factory and agreed to pay rent of Rs.1,000/- per month. However, on 25.1.1963, defendants No.2 and 3 took illegal possession of the factory in dispute. Defendants No.1 and 2 in their written statement admitted the fact that they owned plot No.22-A and were partners of firm M/s Indian Metal Industries. The other contentions in the plaint were denied. It was averred that defendants, plaintiff and their uncle Jai Gopal Rastogi were running a business at Faridabad under the name and style of Indian Glass Agency. The said factory was being run on plot No.22-A. The partnership was dissolved on 31.3.1957 and the plot No.22-A fell to the share of defendants. Plaintiff got more share at the time of dissolution of partnership along with cash. Plaintiff had set up his own business at Jama Masjid, Delhi under the name and style of United Glass Company. No lease deed had been issued by the defendants in favour of the plaintiff qua plot measuring 1795 R.S.A.No. 2817 of 1983 (O&M) 3 square yards or any other plot. The defendants were the owners of the plot in question and building constructed thereon alongwith machines installed therein. Plaintiff had obtained signatures of the defendants on blank papers as he was uncle of the defendants. As per Will executed by defendants' grand-father, House No.1229-38 Chah- Rahat Delhi came to the share of defendants. As per the terms of the Will, S.K.Rastogi and brothers had to pay a sum of Rs.8,000/- to the plaintiff. The receipt book qua the firm was in the custody of the plaintiff and he might have mis-used the receipts. The plaintiff had no licence for running the factory at Faridabad. The electric connection in the unit was in the name of the defendants. Defendants had installed 29 machines in plot No.22-A, Faridabad. Some of the machines were purchased through the plaintiff. Proceedings under Section 145 of the Code of Criminal Procedure were initiated between the parties as plaintiff had claimed five machines out of ten machines shown in schedule 'A'. Defendant No.3 in his written statement averred that Indian Metal Industries was situated in plot No.22-A, Industrial Township, Faridabad. The other contents in the plaint were denied for want of knowledge. It was further averred that defendant No.3 was in possession of the premises and machinery, which was taken in possession from defendant No.2 as per the report of the Local Commissioner appointed by the Court in case titled Varinder Kumar vs. Baljit Singh. Defendant No.3 was in partnership with defendant R.S.A.No. 2817 of 1983 (O&M) 4 No.2. The partnership between Varinder Kumar and Baljit Singh stood terminated w.e.f. 8.11.1970 as litigation was pending between defendants No.2 and 3. The said partnership commenced on 11.3.1970. Defendant No.4 denied the contents of the plaint for want of knowledge. It was averred that the answering defendant had taken the premises on lease from M/s Indian Metal Industries, Faridabad w.e.f. 15.9.1969 and since then the answering defendant was in possession of the property and was regularly paying the lease amount to the landlord. Initially, on the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is owner of the property in dispute? OPP. 2. Whether the plaintiff took the site in dispute on rent from the defendants and if so, on what terms and conditions and to what effect OPP 3. Whether the plaintiff raised any construction on the suit land ? OPP 4.Whether the plaintiff placed any goods and machines into the property in suit ? OPP 5.Whether the defendants mis appropriated and removed any sheds and machines belonging to the plaintiff, if so of how much value and to what effect ? OPP R.S.A.No. 2817 of 1983 (O&M) 5 6. Relief. After the joining of defendants No.3 and 4 as parties to the suit, the following additional issues were framed by the trial Court:- 5-A Whether the present suit is collusive between plaintiff and defendants No.1 and 2, if so, to what effect ? OPD-3 and 4. 5-B Whether the plaintiff has got any cause of action against defendants Nos. 3 and 4 ? OPP 5-C Whether the defendants No.3 and 4 are bound by the decree passed in the present suit in favour of the plaintiff, if any ? OPP 5-D Whether the suit qua defendants No.3 and 4 is within time? OPP 5-E Whether defendnat No.4 is the tenant on the suit premises, if so, since when, under whom and on what terms and conditions and effect thereof ? OPD Defendant No.1 filed an application that differences between him and plaintiff had been resolved. He was prepared to hand over the charge of the factory along with machinery and raw material to the plaintiff. He had no objection if the suit of the plaintiff was decreed. The said application was duly supported by affidavit of defendant No.1 dated 16.1.1967. The said application was contested by defendant No.2. Another application was moved by defendant R.S.A.No. 2817 of 1983 (O&M) 6 No.1 on 3.3.1967 for placing the compromise on record. It was averred that the parties were related to each other and there were lot of litigation between the parties and hence, compromise had been effected dated 16.1.1967 and 17.1.1967 between the parties to end the litigation. The said application was duly supported by the affidavit of defendant No.1. In reply to the said application, defendant No.2 averred that defendant No.1 had no concern with the factory and could not arrive at a compromise with the plaintiff. The trial Court declined to record compromise under Order 23 Rule 3 of the Code of Civil Procedure vide order dated 2.5.1969. The said order was challenged by the plaintiff in this Court by way of FAO No.90 of 1969. Vide order 14.9.1970, the said appeal was dismissed and it was held as under:- “In the present case, the defendant who was the owner of the property in dispute by some arrangement with defendant No.1 was not a party to the deed of compromise and no useful purpose is likely to be served by recording this compromise which can only lead to further mischief and litigation. It is obvious that Surrinder Kumar had come to a collusive arrangement with his uncle with regard to property which he had surrendered in favour of his brother Virinder Kumar. He could not possibly come to an arrangement with regard to the property in which he had given up all claims in favour of R.S.A.No. 2817 of 1983 (O&M) 7 his brother. Under the circumstances, I find that the trial Court was fully justified in declining to record the compromise. The appeal is accordingly dismissed with costs.” Thereafter, defendant No.2 also moved an application that the suit of the plaintiff be decreed as defendant No.2 had arrived at a compromise with the plaintiff. Defendant No.2 was ready to deliver the possession of the property to the plaintiff. The trial Court dismissed the suit filed by the plaintiff vide judgment and decree dated 22.12.1975. Aggrieved by the same, plaintiff preferred an appeal and the same was also dismissed by the District Judge, Faridabad vide judgment and decree dated 16.9.1983. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has submitted that the trial Court had erred in dismissing the suit filed by the plaintiff as defendants No.1 and 2, who were owners of the property in dispute, had stated that they were prepared to deliver the possession of the property in dispute to the plaintiff. On the basis of compromise effected between the parties, the suit of the plaintiff was liable to be decreed. Learned counsel for respondent No.3 has submitted that a partnership was entered between defendant No.3 and defendant No.2 on 11.3.1970 but the same stood terminated on 8.11.1970 as litigation had arisen between the partners. The compromise had R.S.A.No. 2817 of 1983 (O&M) 8 been effected by defendants No.1 and 2 with the plaintiff to injure the rights of defendant No.3. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Admittedly, during the pendency of the suit, defendant No.1 had moved an application that the suit be decreed in terms of compromise effected between the parties. However, the trial Court declined to dispose of the suit on the basis of the compromise as the same was not signed by Varinder Kumar to whom the property belonged. The said order of the trial Court was upheld by this Court. However, thereafter, defendant No.2 also moved an application that he was prepared to give the possession of the suit property to the plaintiff. The argument raised by learned counsel for the appellant that the suit of the plaintiff was liable to be allowed as a compromise had been effected between the plaintiff and defendants No.1 and 2 appeared to be very impressive at the first instance. However, the said argument is liable to be rejected because the interest of defendants No.3 and 4 has also cropped up. Defendant No.4 has alleged that the suit property had been given to it on lease. Defendant No.4 had alleged in the written statement that it was in possession of the suit property. Since the interest of defendants No.3 and 4 was also involved, the suit could not be decided on the basis of compromise effected between the plaintiff and defendants R.S.A.No. 2817 of 1983 (O&M) 9 No.1 and 2. In case the defendants No.1 and 2 were in possession of the property in dispute then they were free to hand over the possession to the plaintiff. They did not require a decree to do so. Thus, there was every chance that defendants No.1 and 2 were actually not in possession of the suit property. The plaintiff had failed to establish his case that the suit property had been given to him on rent. The rent deed had not been proved by the plaintiff. The witnesses examined by the plaintiff to establish the execution of the rent deed dated 25.10.1967 had failed to prove the due execution of the same. Both PW-2 and PW-3 had deposed that no other person had signed the document in their presence. This shows that rent deed had not been executed between the parties in the presence of attesting witnesses. The Courts below, thus, rightly held that the plaintiff had failed to prove the due execution of the rent deed. Since the plaintiff had failed to establish his lawful possession over the property in question, the Courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE January 17, 2011 anita