R.S.A. No. 1925 of 1992 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1925 of 1992 (O&M) Date of decision: 26.05.2009 Rattan Chand ....appellant versus Janak Raj and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. M.L. Sarin, Sr. Advocate, with Ms. Alka Sarin, Advocate, for the appellant. Mr. H.S. Grewal, Advocate, for the respondents. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 5.6.1992, passed by the learned Courts below, in a suit for declaration filed by the plaintiff/appellant, claiming himself to be the sole owner in possession of the house/building detailed in the head note of the plaint, with a consequential relief of mandatory injunction, directing the defendant/respondents to vacate the premises in their R.S.A. No. 1925 of 1992 (O&M) -2- possession. The plaintiff/appellant brought a suit on the pleadings that the house in dispute was purchased vide sale deed dated 2.2.1959 registered on 25.2.1959 for a consideration of Rs.5040/-. The case set up by the plaintiff/appellant was that site underneath house in dispute was purchased by the plaintiff/appellant whereon the house was constructed at his own expenses. Defendants No. 1 and 3 namely Janak Raj and Baldev Raj were entered only as benamidars without any ownership rights. The defendants were said to have, not contributed towards sale consideration of the site underneath the house. The sale consideration was said to have been paid out of the funds of M/s Kahan Chand Rattan Chand, Pathankot, constituted on 17.1.1956. There were three partners in the firm, namely, Kahan Chand having 6 annas 6 pies shares, the plaintiff also having 6 annas 6 pies shares whereas Kans Raj was having share of 3 annas only. Kans Raj defendant No. 2 was working only as partner with no capital contribution. After the purchase of the site, the plaintiff got the plan of the house sanctioned from the Municipal Committee in the year 1960. However, the names of all the vendees i.e. plaintiff and defendants were mentioned formally as per requirement of Municipal Committee. The original site plan was claimed to be in possession of the plaintiff. It was further the case of the plaintiff/appellant that the construction over the site was also raised from the funds of M/s Kahan Chand Rattan Chand. Defendant No. 2 resigned from the partnership firm and thereafter new firm M/s Kahan Chand Rattan Chand was constituted vide partnership deed dated 1.4.1963. In the newly constituted firm, the R.S.A. No. 1925 of 1992 (O&M) -3- partners were plaintiff/appellant, his son Kewal Krishan and Kahan Chand the father of the plaintiff and defendants No. 1 to 3. New partnership firm took over all the assets and liabilities pertaining to the old partnership uptil 31.3.1963 as capital of continuing partners. It was claimed that defendant No. 2 ceased to have any interest in the property after the constitution of the new firm, in which he was not the partner. The plaintiff/appellant claimed that he made certain improvements/additions in the already existing construction from his exclusive funds. It was also the case, that defendant No. 2 was in possession of three rooms with a miani, and three bathrooms, one stair case and common corridor shown in yellow colour in the site plan Ex. P- 3. Defendants No. 4 and 5 who are sons of Baldev Raj defendant No. 3 were occupying three rooms and a kitchen shown in blue colour in the site plan along with a common corridor. The defendants were said to be in possession as licencees under the plaintiff/appellant being his relatives. Defendant No. 2 was said to have locked the portion which was in his occupation for the last four years. The rest of the house in dispute was claimed to be in exclusive possession of the plaintiff/appellant as owner. Sh. Kahan Chand, one of the partners of the firm, died on 15.11.1971. The plaintiff/appellant claimed that he executed a valid 'Will' dated 3.1.1971 during his lifetime in favour of the plaintiff in respect of all his movable/immovable property along with his share in the firm. The plaintiff/appellant averred in the plaint that the defendants had now started claiming, that plaintiff was not the sole owner of the house as they also had share in it. The plaintiff/appellant cancelled the R.S.A. No. 1925 of 1992 (O&M) -4- licence in favour of defendants No. 2, 4 and 5 and sought relief of possession by way of mandatory injunction. The declaration was sought to declare him as owner of the house in dispute. On notice, the suit was contested by all the defendants by filing joint written statement. Preliminary objection was taken that the plaintiff is neither exclusive owner nor in exclusive possession of the entire property. The plea of estoppel to maintain the suit was also raised. It was also the case set up by the defendants that suit for mandatory injunction was not maintainable. The case set up by the defendant/respondents was that the site underneath the house was purchased jointly in the name of the plaintiff and defendants No. 1 to 3 vide sale deed dated 2.2.1959, that all the co-sharers contributed towards construction of the entire premises. The defendant/respondents claimed that plaintiff was in possession of larger portion which was more than his share. The case set up by the defendant/respondents was that the plaintiff/appellant was not ready to part with any portion of this house in his possession. The defendant/respondents claimed that they wanted to get the house partitioned. It was denied by the defendants that they were benamidars. Defendants No. 4 and 5 claimed to be in possession of the portion of the house being sons of Baldev Raj defendant No. 3. It was also the case of the defendant/respondents that defendant No. 2 was not only the working partner but an active partner in the firm constituted in 1956. However, it was admitted that new firm was constituted in the year 1963. It was denied that while dissolving the firm, defendant No. 2 relinquished his share in the house in dispute, as the house was claimed to be, not the property of the firm. Defendant No. 2 claimed his R.S.A. No. 1925 of 1992 (O&M) -5- possession of the portion of the house since the time of its construction i.e. the year 1960. The electric connection was also claimed to be in the name of defendant No. 2 . He claimed that he was married in this house and all his children were born there. Defendant No. 2 claimed that he has constructed one house in the same locality, but has not vacated the portion of the house in dispute. Defendant No. 2 claimed that he had to shift, as the portion in the house in dispute was not sufficient to accommodate his large family. Defendants No. 4 and 5 also claimed their possession since the date of construction. In replication, averments made in plaint were reiterated and that of written statement were denied. The learned trial Court dismissed the suit filed by the plaintiff/appellant by recording a finding that the defendants cannot be held to be benamidars, as it was not proved, as to whether the intention of the firm was to keep them as benamidars or that the building was purchased for their benefit. The learned trial Court, therefore, was pleased to hold that in absence of proof of intention, it was not possible to hold that the defendants were benamidars, and that the suit property belonged to the plaintiff or the firm. In appeal, the learned lower appellate Court has been pleased to non-suit the plaintiff/appellant after recording a finding, that the plot was purchased by the firm M/s Kahan Chand Rattan Chand, and that the construction was also made from the funds of the firm, but as the case set up by the plaintiff/appellant, was not that the property belongs to the firm, he was held not entitled to any relief. The question regarding validity of the 'Will' was not answered. The findings of the learned R.S.A. No. 1925 of 1992 (O&M) -6- lower appellate Court read as under: - “According to plaintiff he had constructed the building and is as such owner thereof. No worthwhile evidence has been led on the file that plaintiff constructed the building himself by spending the amount from his own pocket or from the funds supplied by him in his individual capacity and from his own sources of income. Rather on the contrary, plaintiff himself has pleaded in para 4 of the plaint that house in dispute was constructed with the funds of partnership firm M/s Kahan Chand Rattan Chand, constituted on 17.1.1956. As already stated above said firm constituted of Kahan Chand having 6 annas 6 paise share, plaintiff having 6 annas 6 paise share and Kans Raj defendant having three annas share. This is also so depicted in partnership deed dated 17.1.1956 Ex. D 4 and profits and losses of the partnership shall be divided in this ratio. In the said partnership deed it is also mentioned that capital of the firm at initial stage was contributed by first party and second party. However, third party Kans Raj might invest any money as his capital later on. The capital invested in the firm would not bear any interest. Therefore, it is held that capital of the firm was not solely contributed by Rattan Chand plaintiff and its assets by way of capital belonged to Kahan Chand as well as its profits belonged to all the three partners. In these premises any contribution made from the funds of the firm towards the construction of the house in dispute would be deemed to have been made by all the partners and not by the plaintiff along. This matter is further elucidated from the copies of the accounts of the firm placed on the record which are Ex. P.W.3/J, Ex. P.W.8/L, Ex. P.W.8/H, Ex. P.W.8/9, R.S.A. No. 1925 of 1992 (O&M) -7- Ex. P.W.8/B, Ex. P.W.3/D, Ex. P.W.8/E, etc. as therein it is mentioned that material was purchased from the funds of the firm. In nowhere there is mentioned that the amounts which were spent towards construction of the house was debited to the account of the plaintiff. Plaintiff himself as P.W. 9 has stated that after the plan was sanctioned the construction over the site was raised by him from the funds of the partnership M/s Kahan Chand Rattan Chand constituted vide partnership deed dated 17.1.1956. Thus according to pleadings, documentary evidence i.e. account books of the firm Kahan Chand Rattan Chand and from the statement of the plaintiff himself its stands established that construction of the house was raised from the funds of the firm Kahan Chand Rattan Chand and it was not raised from the funds supplied by the plaintiff from his own pocket or from his individual sources. Therefore, it cannot be concluded that construction was made by Rattan Chand from his own funds and in his individual capacity. It is not the case of the plaintiff that house belonged to the firm but his assertion is that he is sole owner of it, which stands belied by his own pleadings, his evidence on record and by his own statement while appearing as P.W.9 as referred to above. In the plaint plaintiff has propounded will dated 15.11.1991 executed by Kahan Chand in his favour bequeathing all his properties and as such plaintiff is sole successor-in-interest of Kahan Chand, deceased but he has not taken the plea that on the basis of this will he had become owner of the house to the extent of share of Kahan Chand in the house who was partner of the firm from the funds of which firm the construction of the house was raised. Thus, there is no R.S.A. No. 1925 of 1992 (O&M) -8- need to discuss evidence of witnesses regarding execution of the will neither there is any issue where Kahan Chand executed any will in favour of plaintiff and if so it effect. Had plaintiff claimed to have become owner of the house in dispute to the extent what share was owned by Kahan Chand then it could be necessary or requisite to discuss the testimony of P.Ws. Regarding the execution of the will and its effect. Apart from it plaintiff has not impleaded all the heir of Kahan Chand. Therefore, no findings are called for in respect of the execution of the will propounded by the plaintiff dated 15.12.1981 allegedly executed by Kahan Chand and the question regarding this will is left open.” The learned counsel for the appellant raised number of substantial questions of law, but for the purpose of decision of this appeal, we are concerned with only following substantial question of law: - “Whether the learned lower appellate Court acted without jurisdiction in not deciding the validity of the 'Will' (Ex. P-1)?” In support of the substantial question of law, the learned counsel for the appellant contends that decision on the validity of the 'Will' assumes importance, as the learned lower appellate Court non- suited the plaintiff/appellant by recording a finding, that the suit filed by the plaintiff/appellant was in individual capacity, and not on behalf of the firm. The contention of the learned senior counsel for the appellant is, that the finding is outcome of mis-reading of pleadings of the parties. In para 4 of the plaint the case set up by the plaintiff was that the plot R.S.A. No. 1925 of 1992 (O&M) -9- was purchased by the firm M/s Kahan Chand Rattan Chand, and that the house was also built from the funds of the said firm. He claimed exclusive ownership, in view of the fact, that Kahan Chand, other partner of the firm, has died leaving behind 'Will' in his favour under which he is entitled to inherit the property and share in firm exclusively. The contention of the learned counsel for the appellant, therefore, is that after the death of Kahan Chand, under the 'Will' he became exclusive owner of the property with no right of any other partner, therefore, he was exclusive owner of the property. The learned senior counsel for the appellant contends that as the decision on the relief claimed cannot be arrived at in absence of finding on the validity of 'Will', the substantial question of law deserves to be answered in favour of the appellant. It is also the case of the plaintiff/appellant that the evidence has already been led to prove due execution of 'Will' and no further evidence is required. The contention raised by learned senior counsel is disputed by the learned counsel appearing on behalf of the respondent/defendants. The learned counsel for the respondents supported the judgment and decree passed by the learned Courts below. The contention raised is that the respondents being registered owner, are entitled to protect their possession. The learned counsel also contends that for want of issue on the validity of 'Will', no evidence was led by the respondents to contest the 'Will', as also the effect of 'Will' on the dispute between the parties. On consideration of matter, I find that the appeal deserves to be allowed. The judgment and decree passed by the learned Courts R.S.A. No. 1925 of 1992 (O&M) -10- below is set aside and the case is remanded back to the learned trial Court by framing following additional issue: - “Whether Kahan Chand executed 'Will' dated 3.1.1971 in favour of the plaintiff bequeathing his share as well as all movable/immovable property, and its effect?” The learned trial Court may give two opportunities to each party to lead evidence on the additional issue and decide the case afresh, on all the issues. In case, the 'Will' is not proved, in that event defendants No. 1 to 3 being sons of Kahan Chand, would also be entitled to inherit his share in the property of partnership firm, as share of deceased partner is an estate, which is to be inherited by all the legal heirs in Class I in equal share. Parties through their counsel are directed to appear before the learned trial Court on 24.7.2009. Record of the learned Courts below be sent back, to the learned trial Court immediately. Appeal allowed. (Vinod K. Sharma) Judge May 26, 2009 R.S.