HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 169 of 2001 Reserved on: 1.6.2011. Decided on: 29.6.2011. Surinder Kumar Chona ……Appellant/defendant. Versus Vijay Singh Jandrotia and others. ………Respondent/plaintiffs. Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.C.P. Sood & Mr.Dibender Ghosh, Advocates. For the respondents: Mr.Anand Sharma, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant/defendant under Section 100 of the CPC against the judgment and decree, dated 5.1.2001, passed by the learned District Judge, Chamba, vide which he affirmed the judgment and decree of the learned Sub Judge, Chamba, dated 29.8.2000, decreeing the suit of the respondent/plaintiffs. 2. Briefly stated, the facts of the case, as alleged by the plaintiffs, are that late Radha Devi was recorded as owner of khasra numbers, as detailed in the plaint, measuring 490 square yards and 7 square feet, in Mohalla Jansali, Chamba Town. Late Radha Devi had succeeded late Shri Raghbar Dyal and at that time two daughters, namely, - 2 - Smt.Shakuntla Devi and Smt.Leela Devi, since deceased, were born and alive. It was alleged that on the death of Smt.Radha Devi, a dispute arose between the parties when the defendant Surinder Kumar Chona claimed himself to be the owner in possession on the basis of a Will executed by Radha Devi in his favour. The plaintiffs filed a suit against the defendant and the plaintiffs were declared owners by all the courts including this Court. Plaintiff No.1 was declared owner to the extent of one half share and plaintiffs No.2 to 7 and Surinder Kumar, defendant, were declared owners to the extent of one half share of the total land i.e. plaintiff No.1 was declared owner of 7 shares out of 14 shares and plaintiffs No.2 to 7 as owners to the extent of 6/14 shares and defendant Suridner Kumar to the extent of 1/14 share in the suit property. The plaintiffs thereafter filed execution and the parties have been recorded as owners in possession to the extent of their share. 3. It was further alleged that the defendant was requested to partition the property as declared by the courts, but the defendant was not willing to do so. The name of Daulat Ram and one Shyam Sunder were mentioned in the column of ‘Kafiat”, but they were no longer in occupation of the same and correction to that effect has been made vide mutation No.3756 and therefore, they have not been made a party to the suit. Thus, it was prayed that a decree for possession of 13/14 shares in the joint - 3 - property referred above by partition be passed in favour of the plaintiffs. 4. Defendant took preliminary objections in regard to maintainability and that the suit is barred under Order 2 Rule 2 CPC. On merits, he admitted to this extent that Smt.Radha Devi was widow and Shakuntla and Leela were daughters of Raghbar Dyal. He admitted that the dispute arose between the parties. However, he claimed that he is in exclusive possession of the suit property since 1981 and had acquired ownership right by way of adverse possession. In the alternative, he pleaded that even if the plea of adverse possession is not proved, the plaintiffs being the female heirs, have no right to get the house partitioned under the law. 5. On the pleadings of the parties, the following issues were framed by the learned trial Court: “1. Whether the plaintiffs are entitled to a decree for possession by way of partition of the suit property as alleged? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit is hit by Order 2 Rule 2 CPC as alleged? OPD 4. Whether the defendant has become the owner of the suit property by way of adverse possession as alleged, if so, its effect? OPD. 5. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 6. Relief.” - 4 - 6. Parties led their evidence and the learned trial Court vide its judgment decided all the issues in favour of the plaintiffs and as against the defendant and consequently decreed the suit of the plaintiffs. On appeal, those findings were affirmed by the learned District Jude, vide his impugned judgment. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. It was submitted by the learned counsel for the appellant that both the courts below have mis-interpreted the law laid down by the Hon’ble Supreme Court. It was further submitted that the Hon’ble Supreme Court has held that the provisions of Section 23 were not applicable where the dwelling house was rented out to the tenants. It was also submitted that there was no evidence on record not that the house was on rent with the tenants. Therefore, both the courts below erred in holding that Jeet Ram and Chokas were tenants and the entries in voters’ list did not prove the tenancy of the person who is recorded as a voter against a particular house. The person may be in occupation of the property, but it is not proved that he was a tenant and as such the findings to the contrary are liable to be set aside. 9. The learned counsel for the respondents, while supporting the impugned findings recorded by both the courts below, has relied upon the decision in Parbodh Chand Kapoor versus Vijay Kapoor & others, 2009(4) Civil court Cases 100 (P&H), wherein, while referring to the amendment - 5 - of Section 23 of the Hindu Succession Act, 1956, it was held that after 9.9.2005, any female heir can ask for partition in respect of a dwelling house. It was also observed as under: “As regard the locus standi of the daughters to claim partition of a dwelling house, it is not only the daughters who are claiming partition of the property but the brothers too have plunged to claim the share after the death of their father. In any case, now after Hindu Succession (Amendment) Act, 2005 (Act No.39 of 2005) w.e.f. 09.09.2005, the daughters have also been conferred rights to get their share partitioned, therefore, this subsequent event arising out of the change of law obviously is to be applied and, therefore, the question of applying bar of Section 23 of the Act no longer arises for consideration. A similar question arose in case G.Sekar v. Geetha and seven others, 2007(5) RCR (Civil) 118, wherein the Division Bench of Hon’ble Madras High Court observed as under:- “…………….However, it is to be noticed that Section 23 has been omitted by the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) with effect from 09.09.2005. It is no doubt true that such amendment has come into force during pendency of the Appeal. However, even assuming that there was any embargo at the time of filing the Suit for passing the judgment by the learned Single Judge as contemplated under Section 23 of the Act as it stood, in view of the amendment and deletion of such provision, it is obvious that there is no such embargo after 09.09.2005. In other words, after 09.09.2005 any female heir can seek for partition even in respect of a dwelling house. This subsequent event arising out of change in law is obviously to be applied and, - 6 - therefore, the question of applying bar under Section 23 of the Act no longer arises for consideration.”” 10. Reliance was also placed upon the decision in Puspa Mukherjee & Anr. Vs. Smritikana Mukherjee & Anr., 2009(1) Civil Court Cases 071 (Calcutta) (DB), wherein it was held in regard to Section 23, as amended, that female heir of Class-I is now entitled to claim partition of dwelling house in view of amendment of Section 23 of the Act. This was done by amending Act No.39 of 2005 and the impediment of the female heirs of Class-I in claiming partition of a dwelling house as indicated in Section 23 of the Hindu Succession Act having been lifted and at the same time, by the said amending Act, the pending proceedings of partition not having been protected, the respondents are no longer entitled to resist the demand of partition of the plaintiff-appellant. Thus, it was held that the entire property is liable to be partitioned including the dwelling house. 11. On appraisal of the record of the case, it is very much clear that the protection given under Section 23 of the Hindu Succession Act that a house is not liable to partition is available in case the dwelling house has not been rented out by the occupant. Section 23 of the Hindu Succession Act, 1956 reads as under: “Where a Hindu intestate has left surviving him or her both male and female heirs specified in class 1 of the schedule and his or her property includes a dwelling- house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, - 7 - the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein; Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.” 12. A reference has been made by the learned trial Court also to the decision of the Supreme Court in Narashimah Murthy versus Susheelabai and others, Civil Reports 1996(1) 613 (SC), wherein it was held that Section 23 of the Hindu Succession Act only protects a dwelling house and tenanted house is not a dwelling house. It means that a house wholly inhabited by one or more members of the family of intestate. The tenanted house brings strangers there, which denies protection available under Section 23 of the Act to males. 13. There is no dispute in regard to the above law laid down by the Hon’ble Supreme Court and the question is only in regard to its interpretation and applicability to the facts of the present case. The learned counsel for the appellant as also the learned counsel for the respondents have not disputed the fact that the said house is a dwelling house. However, the contention put forth by the learned counsel for the appellant is that both the courts below have wrongly held that it is inhabited by tenants. The evidence led by the parties proves that Smt.Radha Devi, - 8 - previous owner, died in the year 1989. A perusal of the statement of DW-1 Surinder Kumar shows that he has stated that Shakuntla Devi was his aunt, who was never in possession nor it was rented out by him. He stated that he had kept in the disputed house Gaddis, namely, Jeet Ram, but he has not been charging any rent from him. He admitted that in the previous suit, he had taken the plea of adverse possession, but denied his knowledge in case the said suit was decided against him. He stated that Jeet Ram is living in the house since 1980-81 as deradar (in occupation) and his family and brothers are also living there. He denied his knowledge in case Daulat Ram etc. were living as tenants. He stated that he had not kept any tenant nor he has kept Narinder as a tenant. He stated that Radha Devi died in the year 1989. He denied his knowledge as to when he had given the house to one Sain Dass for keeping his luggage. However, he stated that he had given the room for 10 days. He denied that he was not knowing Narinder. 14. DW-2 Jeet Ram had stated that the defendant is owner in possession and he is living in this house as Deradar (in occupation) and has been kept by the defendant. He stated that he is working for the defendant without any charges and he is having one room. DW-3 Sain Dass has also corroborated the statement of DW-1 Surinder Kumar that he had taken the said house for storing goods 8-10 years ago from the defendant. 15. The learned trial Court had referred to the testimony of PW-2 Om Prakash, Election Kanungo, who had - 9 - produced the voters list. The defendant had failed to prove his exclusive possession of the suit land and the perusal of the jamabandi entries Ext.DB, Ext.DC and Ext.P-1 showed that the plaintiffs alongwith the defendant are the joint owners in possession of the suit land. Every co- owner is supposed to be in possession of the suit land unless it is partitioned as per their respective shares, but the dwelling house is not subject to partition in case it is proved to be in one’s own possession. But, in case the possession is given to the strangers or it is given to the tenants, the protection available under Section 23 of the Hindu Succession Act is not available and the said dwelling house is also liable to be partitioned. It has been concluded by the learned trial Court that Jeet Ram resides in the dwelling house right from 1984 onwards and since a stranger is introduced into the dwelling house, the protection given under Section 23 of the Hindu Succession Act is not available to the males. The learned trial Court accordingly rightly interpreted the judgment of the Hon’ble Supreme Court and the learned District Judge had also referred to the evidence and had concluded that the findings of the learned trial Court do not call for an interference. 16. Under such circumstances, there cannot be any reappraisal of the evidence once the evidence has been duly appreciated by the learned trial Court and the learned first appellate Court has affirmed that conclusion. No cogent evidence had been led to prove that the house is not - 10 - in possession of the tenants but is in possession of the defendant, and as such the findings of the learned trial Court affirmed by the learned Appellate Court on all the issues are liable to be affirmed. 17. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant and the same is dismissed. However, the parties are left to bear their own costs. June 29, 2011. (V.K. Ahuja), (tilak) Judge.