RSA No.1258 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1258 of 1986 Date of decision: 31.5.2011 Darshan Lal deceased through his L.Rs. Appellant/Plaintiff No.1 Versus Sant Ram and others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Sh. Anil Mehta, Advocate for Sh.Vishal Aggarwal, Advocate, for the appellant. Mr.Raj Karan Singh, Advocate, for the respondents. -.- JITENDRA CHUAHAN, J. The present appeal is directed against the judgment and decree dated 5.3.1986 vide which the appeal of the plaintiff was accepted and the suit was decreed by the learned Additional District Judge-II, Faridabad, whereby the judgment and decree dated 4.1.1985, dismissing the suit of the plaintiffs by the learned trial Court, was set aside. The following pedigree table will be helpful in understanding the facts of the case at a glance: Khewan Ram (died in 1949) | Smt Parbhati widow of Khewan Ram died in 1971 ___________________________|________________________ | | | | | | Darshan Lal Jodha Ram Sant Ram Chander Parkash Lajwanti Kala Ram (Deft no.1/Appellant) (Deft no.2) (Plff No.1) (Plaff.No.2) (Deft.No.3) Died in1979 It is unfortunate that four brothers have been litigating over RSA No.1258 of 1986 2 partition of the house bearing No.1-H/42 A, Faridabad NIT, for the last 29 years. Brief facts of the present case are that Sh. Khewan Ram, born in Pakistan migrated to India at the time of partition of the country. He died in the year 1949 leaving behind his wife Smt. Parbhati, five sons and one daughter. Smt. Parbhati had died in the year 1971. The sons and daughters are the parties in the present case/suit except one son namely Kala Ram who died in the year 1979. The Union Government allotted the house bearing No.1-H/42-A, situated in NIT Faridbad, to Smt. Parbhati (widow of Sh.Khewan Ram) under the policy for rehabilitation of the displaced persons. Smt. Parbhati died in the year 1971 and the name of defendant No.1 Darshan Lal was substituted as owner of the house, being elder member of the family. It was further case of the plaintiffs that payment of the sale consideration of the house in question was adjusted from the compensation given against the property left behind by his father Sh. Khewan Ram in Pakistan and the remaining amount was paid from the funds of the un-divided Hindu Family. The plaintiffs and the defendants are in joint occupation of the house in question. It was further case of the plaintiffs that after the death of Smt. Parbhati, the property was to be divided into six equal shares among the parties to the present suit. However, defendant No.1 claimed to be the exclusive owner of the house in question. Hence, the present suit. The suit was contested on the grounds that the house in question was allotted to the defendant No.1 in his individual capacity and the plaintiffs and remaining defendants have no right in the house. The defendant No.1 also took the stand that the plaintiff No.1 had been living in RSA No.1258 of 1986 3 the house in question as licensee with his permission. The defendants also denied the claim of the plaintiffs regarding the payment of the sale price of the house in question from the funds of Hindu Undivided Family. From the pleadings of the parties, the following issues were framed:- 1. Whether the disputed house was allotted to Smt.Parbhati and after her death, the same was recorded in the name of defendant No.1 being the elder member of the family, as alleged? OPP 2. Whether payment of the consideration of the house in dispute was adjusted from the compensation given against the property left behind by the deceased Khewan Ram in Pakistan and the balance consideration amount was paid from the funds of Joint Hindu Family? OPP 3. Whether the disputed house was allotted exclusively to defendant No.1, as alleged? OPD 4. Whether the plaintiffs are joint owners and in possession of the disputed house, as alleged, if so what is their share in the disputed house? OPP 5. Whether the suit is not maintainable, as alleged? OPD 6. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 7. Whether the plaintiff has no locus-standi to file the present? OPD 8. Relief. The learned trial Court while deciding issue Nos. 1 against the plaintiffs held that the entire sale consideration was paid by Darshan Lal and the house was allotted to him in his individually capacity. While deciding issue no.2, the learned trial court observed that the entire claim which was adjusted towards the sale consideration of the house in dispute RSA No.1258 of 1986 4 was of Darshan Lal. While deciding issue no.3 in favour of defendants it was observed that the house in dispute was allotted exclusively to defendant no.1 in his individual capacity and not as elder member of the family of the parties. While deciding issue no.4 against the plaintiffs, the trial court came to the conclusion that the plaintiffs have no share in the disputed house. Issues no.5 and 6 were not pressed. While deciding issue no.7 in favour of the defendants the trial court observed that as the plaintiffs have no share in the property in dispute, thus have no locus standi to file the suit for partition. The suit of the plaintiffs was dismissed without costs as the plaintiffs fail to establish their claim to get the share from the disputed house. Feeling aggrieved against the judgment of the learned trial Court, dismissing the suit of the plaintiffs, Sant Ram and Chander Parkash- the plaintiffs preferred an appeal, which was allowed by the learned first appellate Court vide judgment and decree dated 5.3.1986, setting aside the judgment and decree of the trial court; decreeing the suit of the plaintiff for separate possession of their shares by way of partition. Hence the present appeal filed by Darshan Lal alone, was admitted by this Court on 18.9.1986, and in the meantime the passing of final decree was stayed. Learned counsel for the appellant/defendant No.1 has submitted that the house in question was allotted to appellant Darshan Lal only and not to his mother, brothers or sister, who are respondents in the present appeal, and therefore, the plaintiffs/respondents have no share in it. The plaintiff No.1/respondent was residing in the house in dispute as a licencee with the permission of appellant and the appellant has all the rights to terminate his licence. RSA No.1258 of 1986 5 Learned counsel has also submitted that as per the statement of Darshan Lal, the appellant, it is made out that he purchased the share of Sant Ram vide mark X. In the circumstances, the learned counsel has argued that no question arises to admit the claim of the respondents that they have any share in the house in dispute. Learned counsel has also referred to the statement of Chhabil Dass, PW1, (Clerk of the Rehabilitation Department), who admitted in cross-examination that in the application form, the name of appellant Darshan Lal was not recorded as Karta and possession of the house in question was given to him. It has also been submitted that the plaintiffs/respondents have failed to prove that after the death of Smt. Parbhati (mother of the parties), in the year 1971, the name of Darshan Lal was substituted being elder member of the family. It has also been argued by the learned counsel for the appellant that the learned trial Court has rightly observed that the entire sale consideration was paid by the appellant and the house was allotted to him in his individual capacity as the plaintiffs/respondents did not lead any evidence to show that the sale consideration of the house in property was adjusted from the claim of Khewan Ram (since deceased) and balance consideration was paid from the funds of the Joint Hindu Family. On the other hand, learned counsel for the plaintiffs/respondents submits that as per the statement of PW1, Chhabil Dass, Clerk of Rehabilitation Department, it is clearly made out that the house in question was allotted to the appellant Darshan Lal against the joint claim and in the capacity as Karta of the Joint Hindu Family. It has also been submitted that at the time of allotment of the house in question, the plaintiffs/respondents were minors and therefore, there was no question for RSA No.1258 of 1986 6 repayment of Rs.454/- to the respondents. Learned counsel has also submitted that mark X is only a photostat copy, the original of which is not forthcoming. Mark X is not proved as per the Evidence Act. Learned counsel for the respondents argued that no substantial question of law has been framed either in the grounds of appeal or later on at any stage and the present appeal deserves to be dismissed. I have heard the learned counsel for the parties and perused the record with their able assistance. During the pendency of this regular second appeal, Darshan Lal-appellant expired on 29.10.2005. His legal representatives Vijay Kumar; Sushil Kumar; Anil Kumar; Bharat Bhushan sons; Smt Kamlesh; Smt Sudesh Kumari; Smt Ragini and Smt Sangita daughters filed CM No.5799-C of 2009, which was allowed on 8.7.2009 by this Court. In Vijay Kumar Talwar vs Commissioner of Income Tax, (2011) 1 Supreme Court Cases 673, it was observed under section 100 of the Code of Civil Procedure, the finding of fact when gives rise to ‘substantial question of law’ are where:- (i). findings are based on no evidence, and/or; (ii) relevant admissible evidence has not been taken into consideration, or; (iii) inadmissible evidence taken into consideration, or; (iv) legal principles have not been applied in appreciating evidence, or; (v) when evidence has been misread. The most relevant witness in this case is PW1 Chhabil Dass, the Clerk of the Rehabilitation Department, who brought the official record RSA No.1258 of 1986 7 of allotment of the house in dispute and deposed on the basis of the official record which cannot be disbelieved. This witness stated that Darshan Lal filed claim as Karta of the Joint Hindu Family, whose other members were shown Surjan; Jodha Ram; Sant Ram and Chander Bhan as minors. The allotment was made in the name of Darshan Lal and alongwith him Surjan Mal; Jodha Ram; Sant Ram and Chander Bhan are shown as cosharers, though the ownership deed does not show the names of these persons. Except the bald statement of PW1, Chhabil Dass, who is an official witness and deposed on the basis of the official record, there is no other documentary evidence regarding ownership. It is proved that the house in question was allotted to appellant Darshan Lal as the karta of JHF and not to Parbhati. It is also not disputed that at the time of allotment of house in question, the remaining brothers/daughter of appellant were minors and thus were incompetent to complete the formalities with the Rehabilitation Department. From the cross examination of this witness it has been proved that possession report bears the signatures of Darshan Lal only and not of other brothers. Darshan Lal, being major and karta of the JHF was the only competent member to take possession of the allotted house for and on behalf of the entire family. Darshan Lal appellant in his individual capacity was not eligible for the allotment of the house on the basis of the claim of the property left by their father in the Pakistan. This witness further admitted that ‘HUF’ word was used at the time of the adjustment of the claim. This house was allotted on the basis of compensation claim. It is the specific stand of the appellant in the amended written statement that he had purchased shares from his other brothers, but he failed to prove this fact on RSA No.1258 of 1986 8 record. If Darshan Lal took possession of the house in dispute from the Rehabilitation Department, it does not mean that it was in the capacity as the sole owner of the house. In the Joint Hindu Undivided Family Property, possession of a cosharer is deemed to be the possession of all cosharers. It is proved that the other minor brothers were residing with appellant, Darshan Lal alongwith their mother who died in the year 1971. Their father expired in the year 1949. Though the name of all brothers is mentioned in the conveyance deed as proved from the official record, the mentioning of the name of Darshan Lal appellant in the column of ownership is of no consequence. Now adverting to mark X, this document is a Photostat copy of alleged agreement, the original of which is allegedly signed by Sant Ram. The reasoning given by the Ist Appellant Court is convincing. The original of mark X is not forthcoming. Mark X is inadmissible in evidence and no reliance could be placed on such like document. This court has perused the grounds of appeal and no substantial question of law has been proposed or framed in the grounds of appeal. Even during the pendency of the appeal, no proposed substantial question of law has been filed by the counsel for the appellant. In view of the above discussion, no substantial question of law arises for consideration of this Court and the first appellate Court rightly decreed the suit of the plaintiff- respondents. Only the pure question of facts are involved in this regular second appeal. In Subramanian v. Anandakumar- (2005) 11 SCC 543, it has been held that the High Court on reappraisal of evidence holding that conclusions of first appellate court were findings of fact, which did not call for interference in second appeal, hence, the Ist appeal was rightly accepted RSA No.1258 of 1986 9 by the Ist Appellate Court. Accordingly, the present appeal is dismissed with no order as to costs. The judgment and decree of the first appellate court is maintained. 31.5.2011 (JITENDRA CHAUHAN) Mk JUDGE Note: Whether to be referred to the Reporter? Yes / No