IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 70 of 2000 Date of decision : 18.9.2009. Narain Dass. …Appellant. Versus Shiv Dass(dead) through LRs …Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Appellant: Mr. K.D.Sood, Advocate. For the Respondent: Mr. Harish Behal, Advocate. Deepak Gupta, J. (Oral). This unfortunate dispute between father and son has led to this long drawn out litigation almost two decades. The plaintiff instituted a suit in the year 1991 claiming that the suit land comprised in Khata Khatauni No. 71 min/93 min Khasra No. 509, 512, 513 and 579, measuring 0-8-2 bighas situated in Mauja Balichowki, Pargana Sarkibans, Sub-Tehsil Balichowki, District Mandi is recorded in the ownership of his father Shiv Dass. According to the plaintiff, his father has six daughters and two sons, i.e. the plaintiff and his brother Devi Ram. The plaintiff averred that his brother Devi Ram is living separately since the year 1965, when his father divided the property between two brothers. The plaintiff alleged that he had constructed a residential house over Khasra No. 579 and a saw-mill over Khasra No. 513. He had also raised two storeyed building over Khasra No. 512 and 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 513. Portion of this building was let out to Himachal Pradesh Gramin Bank and upper portion of building is being used by him as his residence. According to the plaintiff, he had constructed the building after availing loans. He averred that on 28.11.1991, his father in connivance with his brother Devi Ram tried to oust and forcibly dispossess the plaintiff from the suit property and hence the suit. This suit was contested. It was averred that the suit property is the self acquired property of Shiv Dass. It was averred that the construction was carried out by the defendant from his own earnings. However, he had permitted the plaintiff to sit in the shop and manage this property for the last about 10 years and the plaintiff has been receiving the rent of the aforesaid property. However, this rent is being received on behalf of the defendant. Both the Courts below held that the plaintiff is not owner of the land in dispute. They also held that the construction had been raised by the plaintiff on behalf of his father and not in his individual capacity. The suit filed by the plaintiff was accordingly dismissed. The appeal has also been dismissed by the learned trial Court. This appeal was admitted on the following substantial questions of law:- 1. Whether in view of the admitted position that the plaintiff/appellant was in possession of the land and has constructed the building and rented the same and was carrying the business in the premises and was also realizing rents from the tenants to whom he had let out the premises particularly H.P.State Cooperative Bank and Himachal Gramin Bank, the plaintiff was entitled to a decree for injunction, as prayed for? 2. Whether in the absence of a document for partition and family arrangement, the plea of family arrangement and family partition could not be accepted and the courts below have misconstrued the oral and 3 documentary evidence and the pleadings of the parties which has vitiated the findings? I have heard Shri K.D.Sood, learned counsel for the appellant and Shri Harish Behal, learned counsel for the respondent. It is contended on behalf of the appellant that the evidence on record shows that the portion of the building was rented out to Himachal Pradesh Gramin Bank by the plaintiff who received the rent thereof. It also stands proved on record that it is the plaintiff who had taken a loan from Himachal Pradesh Gramin Bank and had used this loan amount to raise a building. It is further submitted that the plaintiff has right in the property. I am afraid that I cannot accept this contention. There is no manner of doubt and it is not in dispute that the land in question is the self acquired property of Shiv Dass. There could be no partition in favour of the plaintiff or his brother. The very concept of partition is that the person who seeks partition has some pre- existing share in the property sought to be partitioned. There can be no partition of a property in favour of a person who had no pre- existing right or share in the property. The entire edifice of the case of the appellant is that the land was partitioned in his favour. The very basis of the case of the plaintiff has no legs to stand on. In the alternative, it is urged that the father had divided his property between two brothers. Division of property and transfer thereof has to be by a registered conveyance deed. There can be no conveyance of immovable property of the value of Rs.100 or more without any registered deed. There is admittedly no registered deed in favour of the plaintiff. 4 As far as the first question is concerned, merely because the plaintiff had let out the property it would not make him the owner of the property. At best he was the landlord qua the tenant but he had obviously let out the property on behalf of his father. Lastly, even as per the evidence led by the plaintiff he was barely 16 years old when the alleged division/partition took place in the year 1965. His brother was much younger. It appears that the version of the defendant that he had permitted his son to look after his business is the more probable version. This is the version which was accepted by both the Courts below. The plaintiff has no separate source of income. His income is derived from the shop. According to the father, he permitted the plaintiff to sit in the shop. Mere permission to manage properties would not make the plaintiff owner of the property. If he was managing the property, he was managing the same on behalf of the father and not on his own behalf. The plaintiff has failed to prove any inherent right or interest in the property in question as against his father. As far as the second question is concerned, I am of the considered view that since the petitioner did not have any pre- existing right in the property, there was no question of any partition or family arrangement in his favour. It has been pointed out that father Shri Shiv Dass expired during the pendency of this appeal and legal representatives have been brought on record. In case, Shiv Dass has not willed away his property to any other person then the plaintiff being his son is obviously entitled to his share in the property. He may establish his right and claim partition of the property in accordance with law. 5 Both the Courts below rightly dismissed the suit. The findings given by the learned Courts below are pure findings of the fact which do not call for any interference. The appeal is dismissed with the aforesaid observation. No order as to costs. September18, 2009. ( Deepak Gupta ) ™ Judge.