Regular Second Appeal No. 3096 of 2011 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 3096 of 2011 (O&M) Date of Decision: 28.7.2011 Sharat Kumar and Others …Appellants Versus Dharamvir Kochar and Another …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. R.K. Sharma, Advocate for the petitioners. Kanwaljit Singh Ahluwalia, J. (Oral) Civil Misc. No. 8486-C of 2011 For the reasons stated in the application, the same is allowed. The Registry is directed to carry out necessary corrections in the memo of parties. Civil Misc. No. 8487-C of 2011 The present application has been filed under Order 41 Rule 27 read with Section 151 CPC for placing on record the documents (Annexures A1 to A3) by way of additional evidence. It is stated in the application that the plaintiff/respondent No.1- Dharamvir Kochar and Hans Raj were real brothers. Though vide sale deed, the shops were purchased but the expenses for raising construction thereon were incurred by Hans Raj. To prove this fact, Regular Second Appeal No. 3096 of 2011 2 documents (Annexures A1 to A3) are sought to be brought on record, which are stated to be the entries made in the account books maintained by Hans Raj to run the business. This Court is not inclined to allow this application as an ample opportunity was available with the appellants/defendants, during the course of trial, to prove these documents. Furthermore, these entries are stated to be in the hands of respondent/plaintiff-Dharamvir Kochar. When he was cross-examined, these entries were not put to him. Furthermore, detailed reasons, which this Court is going to record while dismissing the appeal, it will not be just and appropriate to allow this application and the same is hereby dismissed. Regular Second Appeal No. 3096 of 2011 Dharamvir Kochar and Hans Raj were the real brothers. The present appellant/defendants No.1 and 2 are sons, whereas appellant/defendant No.3 is daughter-in-law of Hans Raj. Dharamvir Kochar had instituted a suit for possession of half share by partition of shop, details and description whereof were given in head note of the plaint. Furthermore, he had sought ` 1,80,000 as damages and compensation on account of exclusive use of property by the defendants at the rate of ` 5,000 per month as mesne profits. The plaintiff had also sought permanent injunction praying that the defendants be restrained from making any additions, alterations in the suit property or alienation thereof. It was pleaded in the suit that the plaintiff along with his brother Hans Raj, predecessor-in-interest of the appellants/defendants, had purchased the shop jointly vide sale deed dated 18.9.1981. It is not disputed that the demised premises was in the Regular Second Appeal No. 3096 of 2011 3 joint name of Dharamvir Kochar, plaintiff and Hans Raj, who were owners having equal share. Upon notice to the suit, the defendants have caused their appearance and filed a written statement. In their written statement, they stated that deceased Hans Raj was the exclusive owner of the suit property. Furthermore, the suit property was purchased from the funds provided by Hans Raj and out of love and affection, in the sale deed, the name of Dharamvir Kochar was also shown as equal owner. In alternative, a plea was raised that Hans Raj became owner of the entire suit property by way of adverse possession and his possession remained continuous, open and hostile till his death and thereafter the defendants are in exclusive possession of the suit property and their possession through their father being more than 12 years old, such adverse possession has been matured into ownership. The trial Court, after completion of the pleadings, had formulated the following issues:- “1. Whether the plaintiff is entitled to separate possession of ½ share by partition of shop in dispute? OPP 2. Whether the plaintiff is entitled to recovery of ` 1,80,000 as damages and compensation and mesne profits @ ` 5000 per month? OPP 3. Whether the plaintiff is entitled to permanent injunction restraining the defendants from making any additions/alterations and Regular Second Appeal No. 3096 of 2011 4 alienating the shop in dispute? OPP 4. Relief...” On 29.11.2008, the trial Court had formulated the additional issues, which read as under:- “1A. Whether the plaintiff was benami owner of ½ share of the property in dispute? OPD 1B. Whether Hans Raj during his life time had become the owner by way of adverse possession qua ½ benami share of the plaintiff in the suit property? OPD.” The plaintiff himself appeared as PW.1 and closed his evidence, whereas defendant No.2 Sharat Kumar appeared as DW.1, Darshan Kumar and Dalip Kumar appeared as DW.2 and DW.3 and thereafter closed their evidence. The trial Court rejected the plea that plaintiff Dharamvir Kochar was the benami owner to the extent of half share. The trial Court had also rejected the argument raised that since Dharamvir Kochar was referring to the entries in the account books and non production thereof should be construed against him to hold that he had not contributed any amount for the purchase of demised premises. The trial Court further held that the possession of deceased Hans Raj never became adverse or hostile to claim the benefit of exclusive ownership. Thus, the trial Court decided issue No.1B against the defendants and in favour of the plaintiff. The trial Court has also relied upon the admissions made by DW.1 Sharat Kumar during his cross-examination that the plaintiff had been doing the business jointly with his brother Hans Raj till 1984 and Regular Second Appeal No. 3096 of 2011 5 held that he was a partner of the firm when the property was purchased vide sale deed dated 18.9.1981. Therefore, the argument that respondent/plaintiff was the benami owner of the property was rejected and it was held that the respondent/plaintiff and deceased Hans Raj, predecessor-in-interest of the appellants/defendants, were joint owners in the registered sale deed. The trial Court further held that the plea raised by the appellants/defendants is barred in view of the specific provisions of Section 4(2) of the Benami Transactions (Prohibition) Act, 1988. Therefore, issue No.1A was also decided against the appellants/defendants and in favour of the respondent/plaintiff. While determining issue No.2, the trial Court held that the respondent/plaintiff is entitled to grant of ` 1,80,000 by way of compensation and damages at the rate of ` 5,000 per month for a period of three years qua his half share in the property from the date of fling of the suit till the date of partition. The trial Court further held that since the joint property was still to be partitioned, the appellants/defendants were restrained to change nature of the property by making any additions, alterations or alienation of the same. Thus, the trial Court has passed a preliminary decree for separate possession by way of partition of half share of the suit property. The findings given by the trial Court were affirmed by the lower Appellate Court, vide its judgment dated 21.4.2011. The lower Appellate Court held that in the municipal records, the property is recorded in the name of Hans Raj and Dharamvir Kochar and furthermore sale deed bears signatures of Dharamvir Kochar as a purchaser but Hans Raj had not signed the same. The lower Appellate Court has relied upon Jagat Singh and Others v. Shri Kishan Dass and Others 2008(1) Civil Regular Second Appeal No. 3096 of 2011 6 Court Cases 444 (P&H) to hold that claim of adverse possession amounts to admission of title by Dharamvir Kochar. With these additional reasons, the lower Appellate Court concurred with the findings given by the trial Court. Mr. R.K. Sharma, Advocate, appearing for the appellants/defendants, has submitted that Hans Raj was an illiterate person and for running the business he was relying upon his brother Dharamvir Kochar, respondent/plaintiff. He has further submitted that all the entries, made in account books of the firm, show that the expenses were incurred by Hans Raj, therefore, he is to be held in exclusive ownership of the suit property. If this argument is accepted, this Court cannot ignore the admission of DW.1 Sharat Kumar that till 1984 the business was run jointly by Hans Raj and Dharamvir Kochar. Therefore, rightly they were the joint owners of the shop which was purchased vide registered sale deed in the year 1981. Since Dharamvir Kochar was looking after the affairs of that firm that is why the entries were made in the account books in his hands. Furthermore, the sale deed also bears signatures of Dharamvir Kochar. Even though the brothers had parted business, as per the statement of DW.1 Sharat Kumar, in the year 1984, the shop, as per the sale deed, remained joint. Thus, the concurrent findings, recorded by both the Courts below, which is based upon the appreciation of evidence, cannot be reversed as the view formulated by both the Courts below is one, which is possible, after appreciation of the evidence led by the parties. Learned counsel for the appellants has not been able to formulate any point of law, much less a substantial one, which may Regular Second Appeal No. 3096 of 2011 7 warrant interference of this Court. Hence, there is no merit in the present appeal and the same is hereby dismissed, in limine. (Kanwaljit Singh Ahluwalia) Judge July 28, 2011 “DK”