RSA No.1508 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1508 of 1985 Date of Decision: 25.08.2010 Zile Singh ..Appellant Vs. Yoginder Singh alias Joginder Singh & Anr. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.Ashish Kapoor & Mr.Mahi Pal Sharma, Advocates, for the appellant. --- 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 Digest? --- Vinod K.Sharma,J. This appeal by the defendant/appellant, is directed against the judgment and decree dated 14.03.1985 passed by the learned lower appellate court, decreeing the suit for possession, filed by the RSA No.1508 of 1985 2 plaintiff/respondent. Pleaded case of the plaintiff/respondent was, that the plaintiff and defendants are real brothers, and are in possession in equal share of plot shown by letters ABCD in the site plan, attached with the plaint. Plot was measuring 105 square yards. Plot was ancestral property in their hands. Defendant No.2 Mohinder Singh, entered into an agreement of exchange, with defendant No.1, even though defendant No.2, had no right or title, in the absence of the consent and knowledge of the plaintiff and defendant No.3 to exchange the plot. No exchange deed was executed or registered by defendant No.2, in favour of defendant No.1. Defendant No.1 Zile Singh took possession of the plot illegally, on the basis of agreement dated 22.6.1980 and constructed four walls around the plot. Plaintiff and defendant No.3 who were in service at Delhi had no knowledge of the agreement or of taking of possession by defendant No.1. Defendant Chander Singh was empleaded as proforma defendant, as he could not be impleaded as plaintiff. The agreement asserted to be null and void, therefore, a suit for possession. On notice, suit was contested by defendant No.1, wherein it was pleaded, that the plot was not owned by all the brothers. Defendant No.2 was the owner of the plot in dispute. Plaintiff and defendant No.3, had no concern with the suit plot. It was also denied that the plot was ancestral property. RSA No.1508 of 1985 3 It was claimed to be self acquired property of defendant No.2 Mohinder Singh and that he had every right to exchange the plot in dispute with defendant No.1. It was further the case of the defendants that at the time of exchange, defendant No.2 had inquired from the plaintiff and defendant No.3, if they had any objection to exchange, in the presence of Inder Singh and Dalip Singh, but they raised no objection. The possession was, therefore, delivered to defendant No.1, who constructed a boundary wall to the height of 7 feet. A room was also constructed inside the boundary wall, and no objection was taken by the plaintiff or defendant No.3. Suit was said to have been falsely instituted by Joginder Singh, whereas defendant No.2 had invested the amount of Rs.12000/- (Rupees twelve thousand only) for the purpose of construction. Exchange was said to have been effected for the convenience of the parties. Plot and house of defendant No.3, adjoin the plot given in exchange, and the plot in dispute also adjoins the plot of defendant No.1. Suit was alleged to have been filed in connivance with defendant No.3. Preliminary objection was also raised that the suit was not properly valued for the purposes of court fee and jurisdiction. An additional plea of estoppel was also pleaded. It was also the case of the defendants that after the exchange the suit plot was transferred to his wife, after due notice, and on the basis of transfer, she had got the site plan approved from the Municipal Committee, Sonepat and raised construction on the plot. RSA No.1508 of 1985 4 In the replication, averments made in the plaint were reiterated and those made in the written statement were denied. On the pleadings of the parties, learned trial court framed the following issues. 1. Whether the plaintiff and defendant No.3 are co-sharers along with defendant no.2 over the suit land? OPP 2. Whether the suit property is ancestral one in the hands of the plaintiff and defendant No.2and 3? OPP 3. In case issue No.2 is not proved, whether suit property is a self-acquired property in the hands of defendant No.2? OPD 4. Whether defendant No.2 is entitled for giving the suit land in exchange to defendant No.1. 5. Whether the plaintiff is estopped from filing the suit by his own acts and conduct?OPD 6. What amounts the defendant No.2 has invested on the suit properly after exchange? OPD? 7. Relief. Issues No.1 and 2 were taken up together. Learned trial court held, that in order to prove these issues the plaintiff placed reliance on the deposition of Joginder Singh plaintiff, as PW 1 and Katar Singh PW2, who deposed that the suit plot was joint and ancestral property of Joginder Singh, Mohinder Singh and Chander Singh RSA No.1508 of 1985 5 sons of Risal Singh. Onkar Singh son of Hari Ram, PW 4, also deposed in the same terms. In order to prove that the property was joint in the name of the plaintiff and defendants reliance was placed on Ex.P.3 i.e. revenue receipt of House-tax paid by the three brothers, Ex.P.5 and P.6, i.e. copies of Jamanandis for the year 1976-77 and Ex.P.4 the site plan of the plot in dispute. Copy of form No.8 of Municipal Register was also proved by way of documentary evidence. Learned trial court did not agree with the plea, that the ancestral nature of the property stood proved, on the basis of the oral statement of PW Nos. 2 and 4, and the documentary evidence placed on record. Learned trial court further held, that PW 3 Ram Ditta Patwari of Municipal Committee, Sonepat deposed that plot No.5 (Ex.P.4) as per the survey, was his vacant plot which was owned by Risal Singh son of Sheo Dayal, Jai Narain, and Jagan Charan, in equal shares. This witness further deposed that adjacent plots No.4 and 6 were owned by Ram Sawrup, Man Singh son of Suraj Bhan and Dalip Singh son of Lakhmi. Learned trial court held, that the boundaries given by the plaintiff in his plaint in para No.10, and the boundaries of the plot in dispute did not tally with the one given in Ex.P.4. The learned trial court also held, that at the time of agreement, when the plaintiff and defendant No.1 exchanged the plot in dispute for RSA No.1508 of 1985 6 convenience with each other, Mohinder Singh son of Risal Singh, defendant No.2 claimed this plot to be owned and possessed by him. Inder Singh son of Dalip Singh and Dalip Singh son of Jai Narain were present at the time of execution of agreement Ex.D.1. Raj Singh, one of the co-sharers of the plot was also present. Defendant No.1 appeared as DW 1 and deposed, that the suit property was not ancestral, it was exclusively owned and possessed by Mohinder Singh. Possession of the plot was delivered to him on 22.6.1980. Chander Singh and Joginder Singh had not raised any objection, while the construction was being raised. Agreement was proved by Dalip Singh who further deposed that the plot was owned by Mohinder Singh. After exchange Zile Singh had raised construction over the plot with the knowledge and in presence of the plaintiff and defendant No.3. DW 4 Mange Ram also denied that the plot to be ancestral as it was said to have come to Mohinder Singh from one Phulu. In view of the evidence and the finding recorded above, disputed plot was not held to be the ancestral property nor jointly owned by three brothers. Both these issues were decided in favour of the defendants and against the plaintiff. In view of the findings recorded on issues No.1 and 2 it was held, that the property came to Mohinder Singh from one Phulu, was self- acquired property of Mohinder Singh. On issue No.4, it was held that in view of the findings recorded that plot was not ancestral property and further not owned by three RSA No.1508 of 1985 7 brothers, being in exclusive ownership and possession of Mohinder Singh, therefore, he had right to exchange it with defendant No.1. Issue No.6 was not pressed. Consequently, suit was dismissed. The plaintiff preferred an appeal against the judgment and decree passed by the learned trial court. Learned lower appellant court held, that the main point to be considered in the suit was: “Whether the plot in dispute was jointly owned by three brothers namely Zile Singh, Mohinder Singh and Chander Singh?” The learned trial court held, that as Mohinder Singh had chosen not to contest the suit, therefore, an adverse inference was to be drawn against him. Learned lower appellate court held, that Ex.D.1 agreement dated 22.6.1980 was between Mohinder Singh son of Risal Singh and Raj Singh son of Charan Singh having, 105/185 and 80/185 share, respectively, in the plot in dispute. The learned lower appellate court held, that in order to prove ancestral nature of the property Joginder Singh had relied upon revenue record Ex.P.5 i.e. Jamabandi for the year 1976-77. As per Ex.P.5, Mohinder Singh and his two brothers Chander Singh and Joginder Singh were shown as co-sharers in 17 Bighas area situated at Sonepat Patti Jattan. Even according to Ex.P.6, they were shown as co-sharers in 31 Bighas 3 Biswas area situated at Patti Musalmanan. RSA No.1508 of 1985 8 As per copy of survey register, Municipal Committee, Sonepat, Risal Singh was shown to be owner of open site and Chabutra situated in Mohalla Jatwara. Three brothers were sons of Risal Singh. One Charan Singh was also co-sharer therein. Raj Singh is son of Charan Singh, whereas Ex.P.2 was demand notice of property tax according to which three brothers were owners of property No.B-iv 73, 76 and 77 situated at Sonepat. Ex.P.4 was the copy of planning of Sonepat town area, wherein a reference was made to plot No.5, which was exhibited as Ex.P.5. Learned lower appellate court held, that on comparison the details of Ex.P.4 and P.5 tally with details given in Ex.D.1 and no difference could be pointed out. Zile Singh defendant, led no evidence, to controvert the documentary evidence. Learned lower appellate court also considered the oral evidence, to record a finding that as per PW 1 his father died about 20 years, ago and the plot was joint and each brother had 1/6th share therein. It was also deposed that the property was jointly owned, and further that they had executed power of attorney in favour of Joginder Singh. Ex.P.1 and Ex.P.2 were power of attorney executed by three brothers. Boundary wall was held to have been raised in absence of the plaintiff. Property was held to be still joint. Other oral evidence also supported the claim of the plaintiff. Learned lower appellate court held that Zile Singh appellant, RSA No.1508 of 1985 9 had stated that plot in dispute was of Mohinder Singh, which was exchanged but he showed ignorance as to whether the property was joint. The learned appellate court further held that DW 3 Dalip Singh, admitted in his cross-examination that Mohinder Singh, got this plot from his ancestor Phulu and both the brothers had share therein. DW 3 had also shown his ignorance as to whether partition had taken place. The learned lower appellate court came to the conclusion, that it was not proved that the plot in dispute was owned by Mohinder Singh alone, and held that the suit deserved to be decided in favour of the appellant. The learned lower appellate court further held, that mere non- proof of property being ancestral, was not a ground to reject the claim of the plaintiff/appellant, as according to Ex.P.5 and P.6, property was jointly owned by three brothers, which was also proved from Ex.P.1. In view of the findings recorded above, appeal was accepted and decree was passed in favour of the plaintiff for possession by holding Joginder Singh and his brother Chander Singh to be owners of 2/3rd share, out of 1/3 share of the said plot. However, Zile Singh was given liberty to select portion of the plot to the extent of Mohinder Singh's share also. The share of appellant was held to be double, than that of Joginder Singh and Chander Singh. Mr. Ashish Kapoor, learned counsel appearing on behalf of the appellant raised the following substantial questions of law, for adjudication by this court:- RSA No.1508 of 1985 10 1. Whether the judgment and decree passed by the learned lower appellate court is the outcome of misreading of document and oral evidence, thus, perverse? 2. Whether the property could be declared as ancestral, just on the ground that the other land of the plaintiff/respondent was joint.? In support of the substantial questions of law referred to above, learned counsel for the appellant vehemently contended, that the finding of the learned lower appellate court, that the property was ancestral is the outcome of misreading of evidence. The contention of the learned counsel for the appellant, was that execution of power of attorney by the appellant qua the agricultural land along with other brothers, and the evidence led by the plaintiff not sufficient, to record a finding that the property was ancestral in nature, to decree the suit. The contention of the learned counsel for the appellant was that in order to prove ancestral nature of property it was for the plaintiff to have led evidence of inheritance of three degrees, which was not done. It was also the contention of the learned counsel for the appellant that the learned lower appellate court, committed an error in decreeing the suit, even though, the site shown in the plaint, did not tally with the plot in question, nor the number of plot was disclosed. It was also the contention of the learned counsel for the RSA No.1508 of 1985 11 appellant, that the learned lower appellate court committed an error, in not noticing the fact that in view of the construction raised the plaintiff/respondent, was estopped from filing the suit. On consideration of matter, I find no merit in this appeal. It cannot be disputed that the property in dispute was not proved to be a coparcenary ancestral property as rightly contended by the learned counsel for the appellant, as there is no evidence to prove its ancestral nature. Learned counsel for the appellant was also correct that mere execution of power of attorney, could not lead to a conclusion that the property was ancestral. The challenge to the decree of learned lower appellate court cannot be accepted, for the reason, that the learned lower appellate court did not decree the suit, by treating the property to be ancestral coparcenary property. Learned lower appellate court on appreciation of documentary and oral evidence, recorded a positive finding that the property was recorded as joint property in the name of three brothers. The plaintiff, therefore, was also co-owner with defendants No.1 to 3 as the parties were admittedly real brothers. Appellant failed to prove exclusive, ownership of Mohinder Singh, with whom the property was exchanged. Learned lower appellate court rightly held, that the appellant in addition to his share, will also be entitled to share of Mohinder Singh, who had exchanged the property, with him but the property of appellant and RSA No.1508 of 1985 12 defendant No.3 could not be exchanged by defendant No.2. Once the property was held to be jointly owned, as per the revenue record. Except for oral evidence, the defendant/appellant did not lead any evidence to show exclusive ownership of defendant No.2. It was claimed that the property was inherited by him from Phulu, but in the revenue record and all the papers it was shown to be joint property. There was also no evidence of inheritance of Mohinder Singh from Phula, nor it was explained as to how in the revenue record property was shown to be joint property of all the three brothers. The stand of appellant was rather falsified in view of the stand taken, that the exchange was with the consent of plaintiff/respondent. There is no evidence to show that the property was exclusively owned by Mohinder Singh, who had chosen not to contest the case. Findings recorded by the learned lower appellate court, therefore, cannot be said to be the outcome of misreading of evidence, as contended by the learned counsel for the appellant, nor the ground that the property was wrongly held to be ancestral property can be sustained, as the learned lower appellate court had merely held the property to be jointly owned, on the basis of evidence led i.e. oral and documentary. The lower appellate court is final court of facts. Nothing was shown how the finding is perverse, and not sustainable in law. Consequently, the substantial questions of law raised are answered against the appellant. RSA No.1508 of 1985 13 Resultantly, the appeal is dismissed, but with no order as to costs. (Vinod K.Sharma) 25.08.2010 Judge rp