Regular Second Appeal No. 2332 of 1985 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2332 of 1985 Date of decision: 12 .08.2011 Diwan Chand ..... Appellant. Versus Bishan Dass and others ..... Respondents. CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present:- Mr. Kanwaljit Singh, Sr. Advocate with Mr. Vikas Kumar, Advocate for the appellant. Mr. M.L. Sarin, Sr. Advocate with Ms. Alka Sarin, Advocate for the respondents. VIJENDER SINGH MALIK, J. This is a regular second appeal brought by Diwan Chand, defendant no.1 against the judgment dated 06.06.1985 of learned District Judge, Hisar, vide which the suit brought by Bishan Dass has been decided on the strength of the report Ex.C1 of Bishan Dass and its enclosures Ex.C1/A to Ex.C1/C. The suit brought by Bishan Dass is for possession by way of partition of his 1/4th share in a two storeyed house bearing custodian No.1385/3 situated at Hansi and a plot bearing no.280 alongwith house constructed thereon having an area of 17255 square feet situated at Model Town, Hisar. The case set up by Regular Second Appeal No. 2332 of 1985 2 Bishan Dass, plaintiff/respondent is as under:- Bishan Dass, plaintiff and defendants no.1 and 2 named Diwan Chand and Ved Parkash are brothers. Smt. Kako Bai, defendant no.3 is their mother. Kalu Ram, father of the plaintiff and defendants no.1 and 2 and husband of defendant no.3 had purchased the suit property as Karta of Joint Hindu Family. He had died on 19.09.1962. After his death, the plaintiff alongwith defendants became owners in possession of the suit property in equal shares. Therefore, the plaintiff has 1/4th share in the two properties. As disputes remained there in the past between the parties regarding the properties in question, the plaintiff asked the defendants to get the properties partitioned to which the defendants refused and hence, he had brought the suit for partition on 18.09.1974. Defendants no.1 and 2 filed written statement in support of the claim of the plaintiff. Diwan Chand, defendant no.1 had contested the suit of the plaintiff. He took some preliminary objections to the effect that the suit was bad for partial partition; the two storeyed house situated at Hansi had been allotted to Kalu Ram but defendant no.1 had spent Rs.700/- from his pocket in raising construction of that house and, therefore, the plaintiff has got no right to get the said two storeyed house partitioned without making payment of Rs.700/- to him; Kalu Ram died on 18.09.1962 and plaintiff or defendants no.2 and 3 did not file any suit for partition and that they had been admitting defendant no.1 to be owner of the house situated at Hisar; Regular Second Appeal No. 2332 of 1985 3 plaintiff is estopped from filing the suit by his own act and conduct. The suit is also claimed to have been barred by limitation. Plot no.280 alongwith the house are claimed to have been purchased in the name of Kalu Ram due to certain reasons. The answering defendant and his wife had spent the amount in purchasing this property. Therefore, Kalu Ram was just a benamidar in respect of the suit property. Kalu Ram is denied to have ever remained in possession of the property. He is claimed to have been residing at Hisar. He alongwith his wife raised construction in the property in dispute during the period from 1962 to 1974 without any objection from anyone. It is further claimed that they are in possession of a portion of this property while they have given the other portion to Gawar Ram Factory. It is further averred that the plaintiff and defendants no.2 and 3 never claimed ownership in this property. The suit is also denied to be properly valued for the purposes of court fee and jurisdiction. Locus standi of the plaintiff to file this suit is questioned. As house no.280 was situated at Hisar, the civil court at Hansi was denied to have territorial jurisdiction to entertain and try this suit. The suit was also claimed to be bad for mis-joinder and non-joinder of parties as well as causes of action. It was denied in para wise reply that Kalu Ram alongwith the plaintiff and defendants constituted a Joint Hindu Family or that Kalu Ram was Karta of the same. Plaintiff and defendants no. 2 and 3 are denied to have ever remained in possession of any portion of the property situated at Hisar. It is re-asserted that Regular Second Appeal No. 2332 of 1985 4 the answering defendant and his wife are in possession of the property situated at Hisar and they are owners of the same from the date of its purchase without obstruction from anyone and are in adverse possession thereof. The suit is consequently prayed to be dismissed. In replication, the plaintiff had claimed that Kalu Ram had died on 19.09.1962 instead of 18.09.1962, the date given by defendant no.1 for his death. Defendant no.1 has denied to have spent any amount from his pocket on house no.1383/3 situated at Hansi. Plaintiff or defendants no.2 and 3 are also denied to have ever admitted defendant no.1 to be owner of the plot or house bearing no.280 situated at Model Town, Hisar. On the pleadings of the parties, the following issues were framed by the trial court on two occasions:- “1- Whether the plaintiff is the owner of 1/4th share of both the properties situate at Hansi and Hisar and the defendants are the owners of the remaining share in equal shares?OPP (Onus objected to objection Ruled out). 2- Whether the plaintiff is entitled to partition of the properties?OPP 3- Whether the suit is bad for partial partition?OPD 4- Whether the plaintiff is not entitled to any partition of the suit property without the payment of Rs.700/- as alleged in preliminary objection no.3 of the written statement?OPD 5- Whether the suit is not within limitation?OPD 6- Whether Kalu Ram, father of the plaintiff and defendants no.1 and 2 and husband of defendant no.3 was benamidar as alleged in preliminary objection no.4 of the written Regular Second Appeal No. 2332 of 1985 5 statement. If so, to what effect?OPD 7- Whether the suit is not properly valued for the purpose of court-fee and jurisdiction?OPD 8- Whether the plaintiff has no locus standi to file this suit?OPD 9- Whether the civil court at Hansi has no jurisdiction to try this suit in respect of house no.280?OPD 10- Whether the suit for partition cannot proceed as alleged in preliminary objection no.12 of the written statement?OPD 11- Whether the suit is bad for multi-factiousness?OPD 12- Relief. Additional issues were framed on 20.08.1977 by the learned trial court, are as under:- 11-A Whether the plaintiff, defendants and Kalu Ram, deceased formed joint Hindu Family and whether Kalu Ram purchased house no.1385 situated at Hansi and plot no.280 situated at Model Town, Hisar, as Karta of the Joint Hindu Family?OPP 11-B Whether defendant no.1 alongwith Kalu Ram deceased purchased certain land Hansi in the name of Ved Parkash during his minority and Ved Parkash was its benami owner ?If so, to what effect?OPD-1 6-A Whether the plaintiff and defendants no. 2 and 3 had always been admitting defendant no.1 to be the owner of plot no.280 as well as house constructed there upon situated at Hisar and as such they are estopped by their act and conduct to claim any right in that property?OPD-1” Taking evidence of the parties and hearing learned counsel representing them, learned trial court decided the suit holding the property to be joint property of the parties, in which Regular Second Appeal No. 2332 of 1985 6 plaintiff and defendants had 1/4th share each. A preliminary decree of partition has been passed in favour of the plaintiff leaving it to the option of any party to apply for appointment of local commission for actual partition at the spot and preparation of final decree. Issues no. 1,6 and 6-A were taken up together and it has been held under those issues that the plaintiff and defendants are joint owners of the property in question, in which the plaintiff has 1/4th share. The plaintiff was held entitled to seek separate possession of his 1/4th share in the suit property under issue no.2. The suit is not found bad for partial partition under issue no.3. Defendant no.1 is not found to have incurred any expenditure in the repair of the house in question and issue no.4 has been decided against him. Possession of defendant no.1 over the property in question has not been found to have ever been hostile. He is found to have come to possess the house in 1965 as Karta of Joint Hindu Family. The suit for partition is, therefore, found to be within limitation under issue no.6. Nothing was found to have come on the record to show that the suit was not properly valued for the purposes of court fee and jurisdiction under issue no.7. Defendant no.1 also failed under issue no.8 to prove that the plaintiff has no locus standi to file the present suit. The suit related to two properties, one at Hansi and the other at Hisar and it has been held that suit could be filed at either of the two places. Therefore, civil court at Hansi is found to have territorial jurisdiction to try the present suit under Regular Second Appeal No. 2332 of 1985 7 issue no.9 . Issue no.10 where the plea of defendant no.1 was that the suit for partition could not proceed without payment of Rs.5000/-, the debt of Kalu Ram, has been decided against the defendants. Under issue no.11 it is found that daughters of Kalu Ram never claimed shares in the properties in question. On the other hand, they are found to have relinquished their claim, if any, in favour of the parties to the suit. It was, therefore, found that they were not necessary parties to the suit. The parties were found to constitute a Joint Hindu Family with Kalu Ram as its Karta and that Kalu Ram had purchased house no.1385 at Hansi and plot no.280 at Model Town, Hisar as Karta of Joint Hindu Family under issue no.11-A. The plea of defendant no.1 that he alongwith Kalu Ram deceased had purchased certain land in Hansi in the name of Ved Parkash during his minority and Ved Parkash was its benami owner has been decided against defendant no.1. In view of the above, the suit of the plaintiff has been decreed in the aforesaid terms on 30.12.1978. During the pendency of the appeal brought before learned District Judge, Hisar by Diwan Chand, defendant no.1- appellant, he had made a statement to the effect that if his brother Bishan Dass swore by placing his hands on sacred Geeta that whatever property their father Kalu Ram had purchased in his own name or name of Ved Parkash or otherwise before 17.09.1962 was joint property, he would abide by the partition made by Bishan Regular Second Appeal No. 2332 of 1985 8 Dass, keeping in view the possession of the parties. He had also stated that he had appointed Bishan Dass as arbitrator and that he would not file any appeal against his decision. The offer made by Diwan Chand was accepted by Bishan Dass and he had complied with the requirements of the offer of Diwan Chand by making a statement after placing his hands on Geeta that these properties were purchased by their father and that he had been owner of the same. He had also filed a partition report on 5.6.1985, which was exhibited as Ex.C1. The report was accompanied by three site plans Ex.C1/A to Ex.C1/C. Diwan Chand obtained a copy thereof and requested for an adjournment of a day . On 6.6.1985 he claimed time for filing objections to the report. The said request was not allowed by learned Appellate Court and taking into account the intention of Diwan Chand in making the statement dated 28.5.1985, learned Appellate Court has held Bishan Dass to have been a referee whose decision could not be questioned by the appellant. Hence vide judgment dated 6.6.1985, the partition report Ex.C1 alongwith its enclosures was accepted and on the basis of the same, final decree was ordered to be prepared. The appeal was disposed of accordingly. Aggrieved by this judgment, Diwan Chand, has brought this regular second appeal. I have heard Shri Kanwaljit Singh, Senior Advocate with Shri Vikas Kumar, learned counsel for the appellant and Mr. M.L. Regular Second Appeal No. 2332 of 1985 9 Sarin, Senior Advocate with Ms. Alka Sarin, learned counsel for the respondents and have gone through the record of the case carefully. Learned counsel for the appellant has submitted that the court of District Judge, Hisar being the First Appellate Court was duty bound to hear the parties on both the questions of law and facts and should have addressed itself to all the issues of law and facts and decide those questions by giving reasons in support of its findings. He has cited before me a decision of Hon'ble Supreme Court of India reported as Madhukar v. Sangram 2001 AIR (SC) 2171 where the duty of the First Appellate Court while deciding the first appeal has been clearly delineated. Learned counsel for the appellant has further submitted that learned First Appellate Court was, therefore, required to hear the parties on all the questions and to decide the same by giving reasons for its findings. He has further submitted that the First Appellate Court has relied upon the report given by Bishan Dass and has based the decision of the first appeal on the same. According to him, what Diwan Chand, appellant had offered was appointment of Bishan Dass as an arbitrator. According to him, he could not be taken as a referee and the denial of learned First Appellate Court to Diwan Chand of a right to file objections to the report clearly shows that the trial court had fallen in error in this regard. According to him, even if the report of Bishan Dass was treated as award of the arbitrator, objections could be permitted to be filed to the same. According to him, Diwan Chand Regular Second Appeal No. 2332 of 1985 10 never offered to have no right to file objections to the report. Learned counsel for the appellant has further submitted that there was no dispute involved in this suit regarding agricultural land and that learned First Appellate Court on the strength of the report of Bishan Dass has even partitioned the same. Learned counsel for the appellant has, therefore, submitted that the judgment of the learned First Appellate Court cannot be sustained and the matter deserves to be remanded back to the First Appellate Court for fresh decision of the appeal in accordance with law. Learned counsel for the respondents has submitted that the agricultural land was included in the scope of the reference and it is apparent from the order dated 28.5.1985 passed by learned District Judge, Hisar. According to him, what Diwan Chand offered was not to have an award of arbitrator but to have a final decision in the matter against which he undertook not to file any appeal. He has submitted that this submission of Diwan Chand, which was accepted by the other parties resulted in a binding contract and Diwan Chand could not wriggle out of the same. In this regard, he has cited before me a decision of Full Bench of this Court in Mrs. Florabel Skinner and others v. Jai Bajrang Kala Mandir Ram Lila Mandal, Hisar, AIR 1980 (P&H) 284 , wherein it has been held as under:- “We are now left with the Contract Act. As already observed, an offer made by one person on acceptance by the person to whom such offer is made, becomes an Regular Second Appeal No. 2332 of 1985 11 agreement under the law of Contract and none of the parties can resile therefrom. On this principle, we hold that the statement made by the plaintiff, that the suit be decided on the basis of statement made by defendant no.1, on acceptance by the defendants, became a binding contract between the parties and none of the parties could resile therefrom at any time after the contract was complete. Therefore, the plaintiff, on the facts of this case, could not withdraw the offer even before the statement of defendant no.1 was recorded. However, it will be entirely different if defendant no.1 refuses to make a statement. Since the agreement is to abide by the statement of defendant no.1 and if defendant no.1 refuses to make the statement, there will be no option with the Court except to proceed with the suit in accordance with law.” Learned counsel for the respondents has further submitted that the decision in Madhukar's case (supra) is not applicable to the facts of this case because the case was decided on the statement of the appellant. According to him, the decision of the First Appellate Court, which is challenged by way of this appeal is not a decision on merits, having proceeded on evaluation of the evidence and appreciation of the submissions made by the parties. It has, thus, been submitted by learned counsel for the respondents that the decision of learned First Regular Second Appeal No. 2332 of 1985 12 Appellate Court does not deserve to be inferred with. From the submissions noticed above, the following substantial questions of law emerge for answer:- “1- Whether the statement made by Diwan Chand, appellant on 28.5.1985 debarred him from questioning the partition effected by Bishan Dass vide his report Ex.PC and its enclosures Ex.C1/A to Ex.C1/C? 2- Whether Diwan Chand was entitled to bring objections to the report of Bishan Dass? Since the decision of learned First Appellate Court is based on the report of Bishan Dass, who made it after accepting the offer made by Diwan Chand to state by placing his hands on sacred Geeta that the properties purchased by Kalu Ram before 17.09.1962, were joint properties, the decision cannot be said to be cryptic. The First Appellate Court was not required to give decision on all the questions of law and facts involved in this case after addressing itself to those issues by giving reasons in support of the findings. The only question before me is as to whether Bishan Dass was a mere arbitrator and that Diwan Chand was having a right to prefer objections to his report made partitioning the property. Though the word used by Diwan Chand in relation to the character conferred on Bishan Dass was Arbitrator(Salas) yet, the same cannot be held decisive in the matter. The nature of the character conferred on Bishan Dass has to be decided in view of the Regular Second Appeal No. 2332 of 1985 13 attending circumstances. The first and the most important circumstance, which is required to be considered in this regard is the undertaking of Diwan Chand not to file appeal against his decision. It shows that the decision of Bishan Dass in this regard was agreed to be final and unassailable in any manner. This clearly shows that the character conferred on Bishan Dass was that of a referee and learned first appellate court has committed no error in taking his report as report of a referee. When Diwan Chand had offered not to file any appeal to the decision of Bishan Dass and the said offer was accepted by others, the appellant could not wriggle out of the same and had no right to question the decision of Bishan Dass by filing objections or by any other mode. The report regarding partition of the agricultural land, which is also accepted by learned First Appellate Court can, however, be not upheld. The appellant Diwan Chand never offered to include the agricultural land in the reference that was made to Bishan Dass. Moreover, that agricultural land was not a part of the suit property. The mere reference to the agricultural land by Bishan Dass in his statement recorded on 28.05.1985 could not give any reason for him to suggest partition of agricultural land also and include the same in his report. Therefore, the decision of the First Appellate Court with regard to the agricultural land cannot be sustained. Regular Second Appeal No. 2332 of 1985 14 In view of the aforesaid discussion, the decision of the learned First Appellate Court cannot be held bad so far as the residential properties of Hisar and Hansi are concerned. However, the same cannot be sustained with regard to the agricultural land situated in the revenue estate of Hansi. Therefore, deciding the substantial questions against the appellant, I partly accept the appeal and hold that the decree dated 06.06.1985 would not be valid in respect of the agricultural land of Hansi. The judgment and decree, so far as they relate to the residential property of Hisar and Hansi are upheld. The appeal is accordingly decided. ( Vijender Singh Malik ) August 12 , 2011 Judge dinesh