RSA No.1036 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1036 of 2010(O & M) Date of Decision:16.07.2010 Prabha Mehra & Ors. .... appellants Versus Pushpa Seth & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.A.K.Chorpa, Senior Advocate with Mr.Rajneesh Chauhan, Advocate for the appellants **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgement and decrees of the courts below whereby in a suit filed by the plaintiffs-respondents for possession by partition of the properties as detailed, a preliminary decree determining the shares of the parties has been passed. Facts as set out by the plaintiffs-respondents are that the suit properties fully detailed as properties No.(i) and (ii) in the headnote of the plaint and the site plan belonged to and were jointly owned by three brothers namely Sohan Lal, Kanhaya Lal and Chaman Lal son of Bal Mukand Mehra. Sohan Lal died on or about 06.04.1952 leaving behind plaintiffs No.1 to 7 (Now represented by respondents No. 1 to 11) as his legal heirs as such his 1/3rd share in the suit properties devolved upon them. Kanhaya Lal, who was the husband of Roop Rani and father of RSA No.1036 of 2010(O & M) 2 defendants No.2 to 10 died in the year 1981. As such his 1/3 share in the suit properties devolved upon defendants No.1 to 10 i.e.appellants in equal shares. Chaman Lal(predecessor-in-interest of plaintiffs No.8 to 12) also died and had got his 1/3 share in the suit properties. It is further case of the appellants that in an arbitration case titled as “Sujan Singh Sadan etc.vs.Kanhaya Lal & Ors.”which was pending in the court of Sh.C.S.Tiwana,Sub-Judge, First Class, Amritsar, Kanhaya Lal, predecessor-in-interest of appellants and Chaman Lal admitted that suit property referred as No.(i) in para No.1 of the plaint situated on Batala Road, Amritsar was owned by them along with Sohan Lal in equal shares i.e.1/3 share, each, therein. A sale deed dated 14.12.1946 executed by Kanhaya Lal and Chaman Lal, (predecessor-in-interest of defendants No.1 to 10 and plaintiffs No. 8 to 12) in favour of Uttam Chand Chopra etc.relating to the sale of land on Batala Road, also. They admitted that the adjoining property was jointly owned by them along with Sohan Lal Mehra. Since disputes have arisen between the parties to the case and the plaintiffs did not want to get the suit property joint with defendants who were in joint possession of the suit property, referred as No.(i), whereas Nand Lal Mehra, plaintiff No.4 was in exclusive possession of the other property i.e.referred as No.(ii)situated iln Gali Buta Khatik, Dhab Khatikan, Amritsar. Other plaintiffs were in constructive possession of the suit properties through their other co-sharers. The defendants were requested to amicably partition the suit properties but they were evading to do so. Plaintiffs No.2 to 5 had earlier filed a suit for partition of the suit properties referred as(i) above which was subsequently dismissed under Order 9 Rule 3 of CPC on 06.12.1989. Hence this suit. Upon notice, defendants appeared and filed written statement contesting the suit and raising various preliminary objections. On merits, it was alleged that the property situated at Batala Road, RSA No.1036 of 2010(O & M) 3 Amritsar belonging to Kanhaya Lal was exclusively owned by defendants No.1 to 4 and the plaintiffs had no right, title or interest in the said property. It was denied that the suit properties were jointly owned by three brothers. It was further denied that the plaintiffs were the only legal heirs of Sohan Lal, deceased and stated that plaintiffs had no 1/3rd share in any one of the properties involved in the suit nor Sohan Lal had any share. Kanhaya Lal was sole and exclusive owner of the suit property for the last more than 45 years. Plaintiffs or the predecessor-in-interest of the plaintiff have no right, title or interest in the suit property at Batala Road, Amritsar. It was further denied that plaintiffs No. 1 to 7 have 1/21 share each or the defendants No.1 to 10 have 1/30 share each and the defendant No.11(predecessor-in- interest of respondents No.12 to 16 who were later on transposed as plaintiffs No.8 to 12) had 1/3 share in the suit property. Defendants No.1 to 4 were exclusive owners in possession of the suit property situated at Batala Road, Amritsar. There were no disputes between the parties. Question of partitioning the property at Batala Road between the parties does not arise as the plaintiffs have no right, title or interest in the same. Rest of the averments were denied. Prayer for dismissal of the suit was made. Defendants No.5 to 10 (now appellants No.6 to 11) did not appear despite service and as such they were proceeded against ex parte. Chaman Lal defendant No.11(predecessor-in-interest of plaintiffs No. 8 to 12 now respondents No. 12 to 16) had filed written statement stating that he has no objection if the properties in dispute are partitioned among the co-sharers. Plaintiffs filed replication controverting the assertions of the written statement filed by defendants No.1 to 4 and reiterating those of the plaint. From the pleadings of the parties, following issues were RSA No.1036 of 2010(O & M) 4 framed: 1. Whether the plaintiffs have 2/3rd share in the suit property?OPP 2. Whether the suit is barred under Order 23 Rule 1 and under Order 2 Rule 2 of the CPC?OPD 3. Whether the suit is properly valued for the purpose of court fee and jurisdiction?OPP 4. Whether the suit is bad for mis-joinder and non-joinder of parties?OPD 5. Relief. The trial court after relying upon the recitals in sale deeds Ex.PW-1/X, Ex.PW-1/4, admission of DW-17 Ravin Mehra and Arbitration Award Ex.PW-1/10 A and Ex.PW-1/11 A(site plan filed by Chaman Lal and Kanhaya Lal with the Arbitration Award wherein they admitted the property at Batala Road to be joint of three brothers) and the entries in Jamabandis from 1966-67 upto 1991-92(Ex.PW1/14 to Ex.PW1/19)produced on the record (wherein all the three brothers have been shown to be the owners of property in dispute) held that plaintiffs were owners of the suit property to the extent of 2/3 share. It may be noticed here that counsel for the appellants had objected to production and proof of documents Ex.PW1/X and Ex.PW1/4 i.e.sale deed dated 04.07.1944 and 14.12.1946, before the trial Court. However, the said objection was rejected and thereafter, no argument was raised by the appellants regarding the admissibility of these documents, rather the same were also relied upon by them. Onus to prove issue No.2 was upon the appellants. To prove this issue, appellants relied upon Ex.DX/3 dated 06.12.1989 vide which suit of the plaintiffs- respondents was dismissed under Order 9 Rule 3 CPC. The trial Court after relying upon the provisions of Order 9 Rule 4 of the CPC held that dismissal of the suit under Order 9 Rule 3 was not a bar to the fresh suit on RSA No.1036 of 2010(O & M) 5 the same cause of action and decided issue No.2 against the appellants. Onus to prove issue No.3 was on the plaintiffs. The court found that the plaintiffs were in joint possession of the suit property and therefore they were not required to affix ad valorem court fee equal to their share in the suit property and decided the said issue against the defendants. Issue No.4 was not pressed by the appellants at the time of arguments and the same was decided against them. Resultantly, the suit of the plaintiffs-respondents for possession of the suit properties was decreed and the plaintiffs who were successors of Sohan Lal and Chaman Lal were held to have 2/3 share in the suit properties whereas appellants who were successors of Kanhaya Lal were held to have 1/3rd share in the suit properties and as such a preliminary decree for partition of the properties was passed, accordingly. Feeling aggrieved, the defendants filed an appeal before the Lower Appellate Court. It was submitted before the Lower Appellate Court that there was no title deed on the record showing the plaintiff-respondents as co-owners in the suit property in question. Neither any title deed was pleaded nor there was any such title deed in existence. It was further argued that jamabandi was not a document of title and the entries in the aforesaid jamabandi cannot override the title deed Ex.PW1/X where M/s Balson Tea Company, through Kanhaya Lal, has been shown to be the owner of suit property. It was further argued that no permission of the court was obtained while withdrawing the earlier suit and therefore the subsequent suit on the same cause of action was barred. It was further argued that since the plaintiff-respondents were not in possession of any part of the suit property, they were required to pay ad valorem court fee on the market value of the property in question. Plea of limitation was also taken and it was argued that the suit was liable to be dismissed by accepting the appeal. RSA No.1036 of 2010(O & M) 6 On the other hand, plaintiff-respondents had supported the judgement of the trial Court. The Lower Appellate Court after hearing the counsel for the parties came to the conclusion that the suit property was jointly owned by Sohan Lal, Kanhaya Lal and Chaman Lal sons of Bal Mukand Mehra. While coming to the aforesaid conclusion, the Lower Appellate Court observed that in the jamabandis for the year1966-67, 1971-72, 1976-77, 1981-82, 1986-87 and 1991-92 all the three brothers namely Kanhaya Lal, Chaman Lal and Sohan Lal were shown to be joint owners of the suit property. It was also found by the Lower Appellate Court that presumption of truth is attached to the aforesaid entries in the jamabandis which could not be rebutted by the appellants by placing on record any evidence. Thus, keeping in view the aforesaid revenue record coupled with the other evidence on record, the Lower Appellate Court upheld the findings of trial court and consequently dismissed the appeal filed by the defendants- appellants. Still not satisfied, the defendants have filed the instant appeal challenging the judgment and decrees of the Courts below submitting in the memo of appeal that the following substantial questions of law arise in this appeal: 1. Whether in absence of any document to establish the title of the plaintiffs/respondents over the suit property, the suit of partition could be legally decreed? 2. Whether the entries in the jamabandis and khasra girdawaris could be considered as proof of title especially when these entries are rebuttal and have actually been rebutted on record by cogent and valid evidence? 3. Whether the alleged admission in the arbitration award and any observation made thereunder could be taken note RSA No.1036 of 2010(O & M) 7 of much less relied upon? 4. Whether any alleged statement in the arbitration proceedings could be treated as an admission with regard to the title of the property in question in the present Civil suit? 5. Whether the decree for partition could be passed on the basis of circumstantial evidence alone and without there being any document of title having been brought on record and admittedly the plaintiffs failed to prove their title over the suit property? 6. Whether the impugned judgments and decrees which are the result of non-reading and misreading of the pleadings and/or the material evidence is an error of law and such non-reading and mis-reading raises substantial questions of law? 7. Whether in the light of the material on record including the oral and documentary evidence, the findings of the courts below are perverse and as such unsustainable in the eyes. 8. Whether suit for partition(is maintainable)could be decreed, when plaintiffs failed to prove on record their title over the suit property? 9. Whether the entries in the jamabandi are proof of title and/or having any evidentiary value if those are palpably wrong? In support of the appeal, learned senior counsel appearing for the appellants has submitted that the entire approach of the courts below while deciding the issue on law and facts was wrong and unwarranted in view of the material placed on record. It was vehemently RSA No.1036 of 2010(O & M) 8 argued that the respondents have failed to plead as also produce on record any document to establish their title in the property in question. The plaintiffs are claiming themselves to be co-owners of the property in question on the basis of some alleged admissions made by Kanhaya Lal during the proceedings of the arbitration Award but the said admissions were not sufficient to declare them joint owners of the property in question. The sale deed Ex.PW1/X placed on record shows that Kanhaya Lal was the exclusive owner of the property in question as the sale deed was in favour of Balson Tea Company through Kanhaya Lal which means that Kanhaya Lals was the true owner of the property in question. Sohan Lal and Chaman Lal had nothing to do with the same. It was further argued that plaintiffs-respondents have not led any evidence to prove that Sohan Lal and Chaman Lal were partners in Balson Tea Company nor any partition deed or other documents showing them to be partners of the said firm was placed on record and thus they cannot be held to be the partners of the aforesaid company. The plaintiffs-respondents cannot claim themselves to be owners of the suit property on the basis of the Award in question as there was only a passing reference to the property in question. Learned counsel for the appellants has argued that entries of ownership in jamabandis cannot be treated as document of title. In support of his case, learned counsel for the appellants has relied upon a judgment of the Hon'ble Supreme Court in the case of Guru Amarjit singh vs.Rattan Chand & Ors. AIR 1994 Supreme Court 227 and a judgment of this court in the case of Om Parkash vs.Gram Panchayat Jodhpur 2003(3)RCR (Civil) 838 and has argued that the entries in the jamabandi are not the proof of title and are made in the revenue record only for fiscal purposes and in the absence of any title or document produced on record, the respondents, who have come to the Court claiming their ownership over the suit property to the extent of their share cannot be held entitled to the RSA No.1036 of 2010(O & M) 9 decree as prayed, merely on the basis of the aforesaid revenue entries. Learned counsel for the appellants further argued that the onus to prove that the plaintiffs-respondents were entitled to 2/3rd share of property being co-owners was upon them, however, the plaintiff- respondents have badly failed to plead and prove the factum of partnership between three brothers. It was further argued that no adverse inference can be drawn against the appellants for not producing any partnership deed and the onus of proof was upon the plaintiff-respondent. Moreover, no notice under Order 11, 15 and 16 CPC was given to the appellants for producing such partnership deed. Not only this, learned counsel for the appellants further relied upon the municipal record of house tax assessment to show that it was only in the name of Kanhaya Lal, meaning thereby, the property in dispute was in the sole ownership of appellants. Learned counsel for the appellants also argued that the present suit was barred under Order 2 Rule 2 CPC as there is nothing on record to suggest under what circumstances earlier suit was withdrawn and whether the permission was granted to file fresh suit has not been established on record. Learned counsel for the appellants also argued that issue of court fee has been wrongly decided by the courts below as the respondents were liable to pay ad valorem court fee. On the basis of the aforesaid argument, learned counsel for the appellants has submitted that the substantial questions of law as mentioned in the memo of appeal arises for consideration of this court. I have heard learned counsel for the appellants and perused the judgement and decree and the judgements cited at the Bar. Pith and substance of the arguments raised on behalf of the appellants before this court is that since the jamabandis are not the document of title, the impugned decree cannot be passed in favour of the plaintiffs-respondents in the absence of any document of title to establish RSA No.1036 of 2010(O & M) 10 their right in the suit property and the judgement and decrees of the courts below suffer from perversity in view of the arguments raised. The bone of contention between the parties in this case is suit property bearing khasra No.985/566(4K-7M) situated on Batala Road, Amritsar described as property No.14/84-14/85/XVII as fully detailed in para (i) of the headnote of the suit. According to the appellant, the aforesaid property belongs exclusively to them being LRs of Kanhaya Lal who was the sole and exclusive owner of the aforesaid suit property and the respondents who are the LRs of Chaman Lal and Sohan Lal have no right, title or interest in the said property. According to the appellants, there is no document of title on the record showing the respondents as co-owner in the property in question despite the fact that the plaintiffs-respondents have filed the suit claiming themselves to be the co-owners of the suit property and they have miserably failed to prove the same. On the other hand, case of the respondents is that the aforesaid suit property was purchased in the name of partnership firm namely M/s Balson Tea Company through Kanhaya Lal which fact stands proved from the evidence on record i.e.sale deed Ex.PW-1/X, wherein it has been mentioned that the suit property was purchased for M/s Balson Tea Company through Kanhaya Lal and Chaman Lal who were present at the time of execution of the sale deed in favour of the aforesaid firm on behalf of the said firm. Not only this, the respondents have also placed reliance upon the revenue entries i.e.Jamabandis for the year 1966-67, 1971-72, 1976-77, 1981-82, 1986-87 and 1991-92(Ex.PW1/14 to Ex.PW1/19) wherein all the three brothers namely Kanhaya Lal, Chaman Lal and Sohan Lal are shown to be the joint owners of the property bearing khasra No.985/566(4K-7M). It is further case of the respondents that the aforesaid revenue entries carry a presumption of truth unless rebutted and there was nothing on record to rebut the aforesaid revenue entries and RSA No.1036 of 2010(O & M) 11 thus in the absence of any rebuttal, the aforesaid jamabandis which are presumed to be correct have established on record the title of the respondents. The respondents have also placed reliance on the other evidence on record in the shape of Ex.PW1/10 i.e.an arbitration award, wherein vide Ex.PW1/11 A (site plan) Kanhaya Lal and Chaman Lal admitted that they have 1/3 share each in Bunglow at Batala Road (property in dispute). Not only this, counsel for the respondents has also referred to sale deed Ex.PW1/4 vide which the adjoining property was sold by Chaman Lal and Kanhaya Lal in favour of Uttam Chand s/o Mohan Lal and the description of the area falling towards the North Ex.PW1/4 tallies with the description of the property in dispute. The arguments raised by the learned counsel for the appellants are without any merit. No doubt, plaintiffs-respondents have come to this Court claiming that they are owner to the extent of 2/3 share of the suit property along with defendant No.11 and onus to prove issue No.1 and 2 was upon them. However, it is well settled that onus to prove a fact keeps on shifting and after the parties have led evidence it loses significance and what matters is, only, the nature of evidence placed on record by both the parties. A careful analysis of the evidence on record clearly proves that in the revenue record(jamabandis) which carries presumption of truth, the respondents have been shown to be the co- owners of the suit property to the extent of 2/3 share and the aforesaid entries in the revenue record have not been rebutted by the appellants at all. There is not an iota of evidence to contradict the aforesaid revenue entries. The argument raised on behalf of the appellant on the basis of the judgements in the case of Guru Amarjit Singh(supra) and Om Parkash (Supra) to the effect that the entries in jamabandi are not a title of document is misplaced. In Guru Amarjit Singh's case(supra) the question before the Hon'ble Supreme Court was whether setting up of a title in RSA No.1036 of 2010(O & M) 12 themselves as owners or acquisition of title and continuance in possession by operation of law or plea of adverse possession amounts to forfeiture under Clause(2) of Section 111(g) of the Transfer of Property Act. Para No.2 of the aforesaid judgement relied upon by the learned senior counsel for the appellants does not depict any proposition of law as canvassed by the learned counsel and in fact depicts the facts of the case and the catchwords as relied upon by the learned counsel for the appellants are in fact findings of the Lower Court as mentioned in this paragraph and there was no question before the Hon'ble Apex Court regarding the evidentiary value of the revenue entries. Similarly in Om Parkash's case(Supra), this court was considering the evidentiary value of the entries in column No.9 of the jamabandi which pertains to the revenue and not of the entries in the column of ownership. It is well settled that under Section 44 of the Punjab Land Revenue Act, entries in the revenue record carry the presumption of truth unless rebutted. Rather, from the documents Ex.PW1/X, Ex.PW1/4,Ex.PW1/10/A and Ex.PW1/11/A, the version of the plaintiffs- respondents is supported. Not only this, DW15 has admitted that the partnership deed is lying with her brother and DW-17 has admitted that the suit property falls in khasra No.985/566(4K-7M). The argument that no adverse inference can be drawn against the appellants for want of notice under Order 11 Rule 15 and 16 raised by the learned counsel for the appellants is misplaced as the aforesaid provisions only enables a party to inspect a document referred to, by the other party in its pleadings and the opposite party can give a notice under Order 11 Rule 16 to the other party who is relying upon such document to produce the same for inspection. Appellants in their own testimony have admitted the existence of the partnership deed(the admission of DW15 has come on record that the partnership deed is in the possession of appellants). It is well settled that an adverse inference can be drawn against a party withholding the best RSA No.1036 of 2010(O & M) 13 evidence. It was for the appellants to explain as to under what circumstances, they have withheld the aforesaid evidence. It is well settled that assessment register is no proof to establish title of a person. Moreover, the receipt relied upon by the appellants merely establish that municipal dues for the property in question were deposited through appellants. The argument raised by the appellants on the basis of Order 2 Rule 2 CPC is again without any merit as the previous suit was dismissed under Order 9 Rule 3 CPC. Order 9 Rule 4 CPC specifically provides that dismissal of suit under Order 9 Rule 3 CPC is not a bar to file fresh suit on the same cause of action. Counsel for the appellants also argued that the plaintiffs are not in possession of the suit property and are required to pay ad-valorem court fee on the market value of the property in question as a suit by a person out of