Regular Second Appeal No. 2176 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2176 of 2007 Date of decision : May 12, 2010 Mohinder Kumar Malhotra ....Appellant versus Narinder Kumar Malhotra and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. I.K. Mehta, Senior Advocate with Mr. MS Kohli, Advocate, for the appellant Mr. Arun Singla, Advocate, for respondent no. 1 Mr. GS Sawhney, Advocate, for respondent no. 4 Respondents no. 2, 3 and 5 exparte. L.N. Mittal, J. (Oral) Defendant no. 1 Mohinder Kumar Malhotra has filed instant second appeal having remained unsuccessful in both the courts below. Suit was filed by respondent no. 1 Narinder Kumar Malhotra against appellant and respondents no. 2 to 5. Plaintiff and defendants no. 1 to 4 are brothers whereas defendant no. 5 Neelam Rani is their sister. Suit property is SCF No. 12 Sector 20-C, Chandigarh. The same was owned by Ram Swaroop Malhotra father of the parties who died in the year 1978 leaving behind his widow Santosh Bholi Bai and the present parties as his legal heirs. Bholi Bai also subsequently died leaving behind the parties as her legal heirs. Regular Second Appeal No. 2176 of 2007 -2- The plaintiff filed suit for possession by way of partition of the suit property alleging that he has 1/6th share in the suit property having inherited from his parents and defendants also have 1/6th share each therein in the same manner. The plaintiff claimed separation of his 1/6th share in the suit property by partition. Defendants No. 1, 2 and 5 in their joint written statement admitted that Ram Swaroop Malhotra father of the parties was owner of the suit property and he died on 5.7.1978 leaving behind the parties and widow Santosh Bholi Bai. However, Santosh Bholi Bai also died in the year 1991. It was pleaded that in the year 1984, a family settlement took place between the parties and the suit property fell to the share of defendants no. 1 and 2 exclusively and since then they are owners in possession thereof. Plaintiff was already doing his business separately. Defendants no. 1 and 2 invested amount for purchase of a three wheeler for the plaintiff in the year 1992. The plaintiff was earning his livelihood by plying the said three wheeler. Plaintiff resided in the suit property till 1992 and then shifted to another house. Defendants no. 3 and 4 started their business separately in Sector 32, Chandigarh and sufficient amount was invested for running of restaurant and sweet shop by them. They have also not claimed any share in the suit property. Defendants no. 1 and 2 are running their business in the suit property being absolute owners in possession thereof. Defendant no. 5 has already relinquished her share in the suit property in favour of defendants no. 1 and 2 through relinquishment deed dated 22.1.1990 and she also affirmed an affidavit to this effect and has also executed general power of attorney in favour of defendants no. 1 and 2. Various other pleas were also Regular Second Appeal No. 2176 of 2007 -3- raised. Defendant no. 4 supported claim of the plaintiff. Defendant no. 4 also alleged that defendants no. 1 and 2 were allowed to use the premises as licencees but they did not pay any licence fee or consideration for occupation of the share to other co-owners in the suit property. Defendant no. 3 was proceeded exparte in the trial court. Learned Civil Judge (Junior Division), Chandigarh vide judgment and decree dated 24.9.2001 decreed the plaintiff's suit for partition of the suit property. It was also observed that since actual partition of the suit property is not permissible, the suit property be put to auction first amongst the co-owners i.e. parties to the suit and if same is not possible, property be put to public auction and sale proceeds be distributed in equal shares to all the legal heirs of Ram Swaroop Malhotra i.e. 1/6th share each to the plaintiff and defendants. Defendant no. 1 preferred first appeal against judgment and decree of the trial court. Learned Additional District Judge, Chandigarh vide judgment and decree dated 12.9.2005 modified the judgment and decree of the trial court regarding sale of the suit property and directed that judgment and decree of the trial court shall be taken to be preliminary decree specifying the shares of the parties in the suit property and the trial court would make further inquiry into the possible modes of partition and thereafter final decree shall be drawn as may be permissible under the law. Judgment and decree of the trial court were affirmed in other respects. Feeling aggrieved, defendant no. 1 has preferred the instant second appeal. I have heard learned counsel for the parties and perused the Regular Second Appeal No. 2176 of 2007 -4- case file. At the outset it has to be noticed that defendant no. 5 in written statement filed jointly with defendants no. 1 and 2 asserted that defendant no. 5 had relinquished her share in the suit property in favour of defendants no. 1 and 2 through relinquishment deed dated 22.1.1990 and had also affirmed affidavit to this effect and has also executed general power of attorney in favour of defendants no. 1 and 2 but in spite thereof the courts below have held that the plaintiff and all the five defendants have equal shares in the suit property. However, in view of aforesaid plea of defendant no. 5 herself, her 1/6th share should have been held to be that of defendants no. 1 and 2 in addition to their own 1/6th share each. Even learned counsel for respondents no. 1 and 4 appearing in this appeal have no objection to modification of the judgments and decrees of the lower courts to this extent. It is accordingly held that plaintiff and defendants no. 3 and 4 have 1/6th share each in the suit property whereas defendants no. 1 and 2 have 1/4th share each in the suit property and defendant no. 5 is left with no share in the suit property. Learned counsel for the appellant vehemently contended that in family settlement the suit property fell to the exclusive share of defendants no. 1 and 2. It was also contended that defendant no. 1 being eldest settled plaintiff and defendants no. 3 and 4 in their separate business and therefore, plaintiff and defendants no. 3 and 4 have no right, title or interest in the suit property. The aforesaid contention cannot be accepted. Defendants no. 1 and 2 have miserably failed to prove the alleged oral family settlement. Regular Second Appeal No. 2176 of 2007 -5- Both the courts below on appreciation of evidence on record have come to concurrent finding to this effect. The said finding is founded on sound reasons and cannot be said to be perverse or illegal so as to warrant interference in second appeal. In addition to the aforesaid, it has not been explained by defendants no. 1 and 2 as to what was given to plaintiff and defendants no. 3 and 4 in the family settlement in lieu of their shares in the suit property. Family settlement allegedly took place in the year 1984, according to the version of the contesting defendants. However, it is also pleaded by contesting defendants that three wheeler for the plaintiff was purchased by defendants no. 1 and 2 in the year 1992. It would depict that nothing was given to the plaintiff in the year 1984 at the time of alleged family settlement in lieu of his share in the suit property. It was also emphatically contended by learned counsel for the appellant that defendants no. 3 and 4 were settled in separate business in Sector-32, Chandigarh. However, the mere fact that defendants no. 3 and 4 are running their separate business in Sector-32, Chandigarh would not imply that they relinquished their share in the suit property in favour of defendants no. 1 and 2. The plea of alleged family settlement raised by defendants nos. 1 and 2 is further belied by their own version. According to the contesting defendants, the alleged family settlement took place in the year 1984 and the suit property fell to the exclusive share of defendants no. 1 and 2 in the family settlement. However, contesting defendants have also pleaded that defendant no. 5 vide relinquishment deed dated 22.1.1990 relinquished her share in the suit property in favour of defendants no. 1 and 2. This plea is Regular Second Appeal No. 2176 of 2007 -6- destructive of the plea of alleged family settlement having taken place in the year 1984. If in the alleged family settlement in the year 1984, the suit property had fallen to the exclusive share of defendants no. 1 and 2, where was the question of relinquishment of her share by defendant no. 5 in favour of defendants no. 1 and 2 vide relinquishment deed dated 22.1.1990. This plea of the contesting defendants regarding relinquishment deed dated 22.1.1990 by defendant no. 5 further establishes that there was no alleged family settlement in the year 1984 wherein the suit property allegedly fell to the exclusive share of defendants no. 1 and 2. Learned counsel for the appellant contended that appellant had moved application in first appeal for amendment of the written statement. However, the said application has been rejected by the lower appellate court by impugned judgment itself while dismissing the appeal. I find no justification for permitting proposed amendment in the written statement. For the reasons recorded herein above, I find no merit in the instant appeal except to the extent already indicated above. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly allowed partly and judgments and decrees of the courts below are modified to the extent indicated herein above. Accordingly, it is held that plaintiff and defendants no. 3 and 4 have 1/6th share each in the suit property whereas defendant nos. 1 and 2 have 1/4th share each in the suit property and defendant no. 5 has no share in the suit property. ( L.N. Mittal ) May 12, 2010 Judge 'dalbir' Regular Second Appeal No. 2176 of 2007 -7-