IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 4201 of 2006 Date of Decision: 29.4.2009 Som Nath @ Som Parkash. ....... Appellant through Shri R.K.Gupta, Advocate. Versus Rajinder Kumar. ....... Respondent through Shri Vinod Gupta,Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 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 the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgment and decree dated 31.8.2006 passed by the Additional District Judge, Kaithal (hereinafter described as `the First Appellate Court') whereby the appeal of the defendant-respondent was accepted, the judgment & decree dated 27.11.2002 of the Additional Civil Judge (Senior Division), Guhla (referred to hereinafter as `the trial Court') were set aside and the suit of the plaintiff- appellant was dismissed with costs. The appellant filed a suit for partition by pleading that the property in dispute, which is a shop, exists in the Subzi Mandi, Cheeka; that R.S.A.No.4201 of 2006 -2- .... it was purchased by the respondent, Karori Mal & Ram Gopal Suresh Kumar from Haryana Urban Development Authority; that a family settlement was arrived at between the parties on 4.2.1990 according to which they were to be the owner of the suit property to extent of ½ share each; that the respondent had agreed to purchase his ½ share in the suit property for a sum of Rs.65,000/- and that the respondent had further agreed to pay the said amount by 15.5.1990. It was further pleaded that the respondent did not pay the agreed amount by the due date and also did not agree to partition of the disputed property and hence, he was constrained to file the instant suit. Upon notice, the respondent appeared and filed his written statement contesting the suit. It was pleaded that the suit property was part of plot no.8, measuring 137.5 square yards which was his joint property along with Kirori Mal and Suresh Kumar. It was further pleaded that the suit property had never been partitioned and he was in possession of the same and that the appellant had nothing to do with the same. The respondent averred that there was a dispute regarding joint business of the parties which was settled amongst three firms, namely, M/S Mam Chand Ram Sarup, Commission Agent, Bhagal; M/S Jindal Timber Store, Cheeka and M/S Rameshwar Dass Som Parkash; that all the accounts were settled and he was to pay Rs.65,000/- to the appellant for settlement of accounts and that the settlement deed was executed, as also the retirement deed, as a result of which he appellant retired from the partnership firm. He alleged that a R.S.A.No.4201 of 2006 -3- .... writing was got executed from him on the same date regarding payment of Rs.65000/- to the appellant by 15.5.1990 and the particulars of the shop were written under pressure and coercion as security. It was further alleged that the amount of Rs.65,000/- were paid to the appellant at Cheeka in the presence of Madan Lal Jindal and a writing was executed by him acknowledging the receipt thereof. The parties went to trial on the following issues:- 1. Whether the plaintiff is co-owner in possession to the extent of ½ share of the shop in dispute as alleged?OPP 2. If issue no.1 is proved, whether the plaintiff is entitled to a decree for partition to the extent of ½ share of the shop in dispute?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the plaintiff has no locus standi to file the present suit?OPD 5. Whether suit is bad for non-joinder of necessary parties?OPD 6. Whether the suit is bad for partial partition?OPD 7. Relief. After appraisal of the entire evidence on record, the trial Court decreed the suit of the appellant. However, on appeal, the First Appellate Court upset the R.S.A.No.4201 of 2006 -4- .... findings of the trial Court and held that receipt of Rs.65000/- by the appellant was proved. It was further held that the document dated 4.2.1990 was also proved and, therefore, the claim of the appellate stood satisfied. This has resulted in filing of the present Regular Second Appeal by the appellant. Learned counsel for the appellant contended that the findings of the First Appellate Court are totally erroneous, palpably perverse and warrant interference. He submitted that the receipt on the basis of which the First Appellate Court has based the impugned judgment was merely marked as Mark-D on the record and was never exhibited and, therefore, no reliance could have been placed thereon. He argued that the respondent had miserably failed to produce any evidence to show that any amount was paid as no accounts books and income tax returns etc. were produced. He further argued that no other documentary evidence was adduced to prove the payment of this amount. He submitted that even if the plea of the respondent is to be accepted that the appellant had retired from the business of the partnership firm, then in that eventuality, the amount of Rs.65000/- had to be paid to him, which having not been done, has resulted in serious prejudice to him. On the other hand, learned counsel for the respondent contended that Mark-D was adequately proved by the respondent. He submitted that one of the attesting witnesses of this document was Madan Lal Jindal, who was summoned,but he did not appear as a witness and R.S.A.No.4201 of 2006 -5- .... thereafter, the respondent was constrained to summon his Munim, who proved his signatures on the receipt Mark-D. He argued that in this manner, the execution of Mark-D was adequately proved. It was contended that the receipt having been proved, the amount of Rs.65000/- stood paid to the appellant and,therefore, he cannot raise any grievance by filing a suit. He, therefore, prayed for dismissal of the appeal. I have thoughtfully considered the rival contentions/ arguments and have perused the impugned judgments. The appellant has pleaded that there was a family settlement on 4.2.1990 according to which the shop in dispute was divided in two parts and he was to get ½ share with the right that the respondent would purchase the same for a sum of Rs.65000/-, whereas the respondent has pleaded that it was settlement qua a firm from which the appellant had retired and as a measure thereof, Rs.65000/- were to be paid to him. According to the respondent, the condition regarding partition of the shop was incorporated in the agreement dated 4.2.1990 under duress with sole objective of payment of Rs.65000/-. If the respective cases of the parties are evaluated, then the controversy narrows down to the fact that Rs.65000/- had to be paid to the appellant by the respondent in lieu of the purchase of the share of the former as per the agreement dated 4.2.1990 or it was a measure of settlement regarding retirement of the appellant from the partnership firm. Therefore, the Court has to evaluate the evidence on record regarding the plea taken by R.S.A.No.4201 of 2006 -6- .... the appellant that the amount of Rs.65000/- had not been paid. Concededly, the receipt on record was marked as Mark-D and has not been exhibited in accordance with law. It would have been more desirable if the same had been exhibited, but the Court is not precluded to look at a document which helps in arriving at a just decision in the case if the party concerned has adequately explained the circumstances. In the instant case, the respondent has been able to establish that despite best efforts, he could not produce Madan Lal Jindal as a witness, but his signatures were certainly proved on receipt by his Munim, who appeared in the witness box and identified those signatures. The handwriting expert, who has appeared DW2, established that the signatures of the appellant on the receipt and document dated 4.2.1990 were the same extending the certain amount of legitimacy to the document Mark-D. In this view of the matter, when there is no other material to substantiate the case of the appellant that the amount in question had not been paid to him, I am of the considered opinion that the Court was not entirely precluded from noticing the document Mark-D which not exhibited and arriving at a pure finding of fact. Merely because there was no other documentary evidence in the shape which has been expressed by the learned counsel for the appellant, i.e., in the shape of income tax return etc. is not to imply that Mark-D was a document which could not be relied upon. I am further of the opinion that a pure finding has been returned by the First Appellate Court which does not warrant interference. R.S.A.No.4201 of 2006 -7- .... No substantial question of law has been shown to have arisen in this appeal which is held to be devoid of any merit and is dismissed. April 29,2009 ( Mahesh Grover ) “SCM” Judge