R. S. A. No. 1277 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1277 of 2009 Date of Decision : February 17, 2010 Parkash Chand .... Appellant Vs. Diwan Chand Dhaula and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Suresh Goyal, Advocate for the appellant. Mr. Jagtar Singh, Advocate for respondent no. 1. * * * L. N. MITTAL, J. (Oral) : This is second appeal by defendant no.1 Parkash Chand, who has been unsuccessful in both the courts below. Diwan Chand Dhaula-respondent no.1 filed suit for possession of 1/3rd share by way of partition of the suit property – a three-storeyed building situated at Barnala. The parties are brothers. The plaintiff's case is that the suit property was purchased by their father in the name of plaintiff and both defendants, who were minors at that time. Defendant-respondent no.2 sold his 1/3rd share to defendant no.1-appellant. The plaintiff is still owner of 1/3rd share. The plaintiff did not want to keep the property joint. Defendant no.2 was proceeded ex-parte in the trial court. Defendant no.1 contested the suit and inter alia pleaded that R. S. A. No. 1277 of 2009 2 vide agreement to sell dated 04.12.1982, the plaintiff agreed to sell his 1/3rd share in the suit property to defendant no.1 for Rs.40,000/- and sale deed was to be executed up to 15.06.1984. Defendant no.1 paid Rs.8,000/- to plaintiff vide bank draft, Rs.10,000/- in cash in presence of Dr.Kaumi and Rs.12,000/- on 15.06.1983 in the presence of one Narain Dass. The plaintiff made endorsement on the back of the agreement regarding receipt of the aforesaid amounts. On 26.12.1986, the plaintiff received another amount of Rs.20,000/-, besides Rs.2,500/- to purchase stamp papers for the sale deed. The sale deed was also scribed, but the plaintiff did not get it registered and therefore, plaintiff obtained refund of amount of the stamp papers. It was also pleaded that defendant no.1 is in adverse possession of the suit property for more than 12 years and has, therefore, become its owner by way of adverse possession. Various other pleas were also raised. Learned Civil Judge (Junior Division), Barnala, vide judgment and decree dated 09.06.2005, decreed the suit of the plaintiff and passed preliminary decree for partition of the suit property holding the plaintiff to be owner of 1/3rd share therein. First appeal preferred by defendant no.1 has been dismissed by learned Additional District Judge, Barnala, vide judgment and decree dated 27.11.2007. Feeling aggrieved, defendant no.1 has preferred the instant second appeal. Notice of motion was issued in the instant appeal to explore possibility of settlement because defendant no.1-appellant and plaintiff- respondent no.1 are real brothers and the appellant offered to purchase the share of the plaintiff at re-negotiated price. However, the parties have failed to arrive at amicable settlement. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant contended that the plaintiff has admitted agreement Ex.D-1, whereby he agreed to sell his 1/3rd share in R. S. A. No. 1277 of 2009 3 the suit property to defendant no.1. It was also contended that plaintiff also admitted endorsement Ex.D-2 made at the back of the agreement depicting payment of Rs.8,000/- by way of bank draft, Rs.10,000/- in cash through Dr.Kaumi and Rs.12,000/- in cash on 15.06.1983 in the presence of one Narain Dass i.e. total amount of Rs.30,000/-. It was accordingly contended that the plaintiff is not entitled to seek partition of the suit property. On the other hand, learned counsel for respondent no.1 contended that defendant no.1-appellant failed to comply with the terms and conditions of the agreement, and therefore, the amount paid by defendant no.1 to the plaintiff stood forfeited. I have carefully considered the rival contentions. As noticed herein above, agreement (Ex.D-1) dated 04.12.1982 and endorsement (Ex.D-2) on the back of the agreement stand admitted by the plaintiff. Endorsement Ex. D-2 depicts that the plaintiff admitted having received Rs.30,000/- in all from defendant no.1. However, the total sale consideration was Rs. 40,000/-. Further payment of Rs.20,000/- by defendant no.1 to the plaintiff has been found to be not proved. Moreover, said payment would make the total amount to be Rs.50,000/-, whereas agreement was for Rs.40,000/- only. Consequently, payment of Rs.20,000/- cannot be said to be established. The plaintiff is, therefore, entitled to seek possession of his 1/3rd share by way of partition. The agreement did not confer any title on defendant no.1 in the absence of registered sale deed. The plea of defendant no.1 regarding adverse possession also cannot be accepted because the parties are co-sharers in the suit house. Ouster of the plaintiff, so as to depict adverse possession of defendant no.1 over the suit property, is not proved. It is also worth noticing that defendant no.1 also never filed suit for specific performance of the agreement. Consequently, defendant no.1 cannot deny the right of the plaintiff to seek partition of the suit property and separate possession of his 1/3rd share therein. However, since the R. S. A. No. 1277 of 2009 4 agreement stands admitted and payment of Rs.30,000/- by defendant no.1to the plaintiff also stands proved, interest of justice demands that the plaintiff should pay the aforesaid amount of Rs.30,000/- with reasonable interest thereon, to defendant no.1. This would be in accordance with the principles of equity, justice and good conscience and also in view of Section 64 and Section 65 of the Indian Contract Act, 1872. Accordingly, judgments and decrees of the courts below are liable to be modified to this extent. As regards rate of interest, the payments were made on or before 15.06.1983, when the interest rates were very high. However, after the year 2000, interest rates have fallen considerably. Keeping in view the same, I am of the considered opinion that it would be just and appropriate if the plaintiff pays simple interest @ 12% per annum for the entire period i.e. since 15.06.1983 till date of payment, along with principal amount of Rs.30,000/-. In view of the aforesaid discussion, the instant second appeal is allowed partly. Judgments and decrees of the courts below are modified to the extent that before getting possession of his 1/3rd share in the suit property by partition, the plaintiff shall be liable to pay to defendant no.1- appellant a sum of Rs.30,000/- along with simple interest thereon @ 12% per annum since 15.06.1983 till date of payment. February 17, 2010 ( L. N. MITTAL ) monika JUDGE