RSA No. 848 of 2010 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. RSA No.848 of 2010(O&M) Decided on 27.8.2010. Dev Raj --Appellant vs. Baini Parshad -- Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Diensh Ghai,Advocate,for the appellant Mr.Vivek Suri,Advocate, for the respondent Rakesh Kumar Jain, J, The defendant is in second appeal against judgment and decree of both the Courts below by which suit for possession filed by the plaintiff has been partly decreed with costs holding him entitled to possession of the shop in dispute alongwith mesne profits @ Rs.20/- per month from the date of suit till its realisation. In brief, facts of the case are that Manohari Devi, mother of the parties, who are real brothers, was owner of the shop in dispute. During her life time, she gave possession of the shop in dispute to the defendant/appellant for the purpose of his business. It is alleged that Manohari Devi had offered to sell the shop in dispute to both the parties in equal shares for a consideration of Rs.1,00,000/- which was to be paid equally by them. The plaintiff had paid his share to his mother. Thereafter, a dispute arose between the parties which was resolved with the RSA No. 848 of 2010 (O&M) 2 intervention of the respectables and the defendant/appellant agreed to purchase the entire shop for a consideration of Rs. 1,00,000/- for which a sum of Rs.50,000/- was paid as earnest money on 11.8.1992 regarding the share of the appellant and he promised to pay the balance amount of Rs.45,000/- to the plaintiff on 2.2.1993. Thereafter, he paid the entire sale consideration to his mother and got the sale deed executed in his favour on 30.7.1998. The plaintiff then claimed vacant possession and also mense profits at the rate of Rs.2000/- per month from the date of institution of the suit till the date of recovery of possession. In the written statement, all the averments made in the written statement were denied except that the mother of the parties had agreed to sell ½ portion of the disputed shop to the defendant/appellant against a sum of Rs. 50,000/-, out of which she had received Rs.20,000/- as earnest money at the time of execution of agreement to sell dated 5.11. 1992 which was executed in the presence of the witnesses namely Angoori Sarpanch Sekhupura, Ajay Kumar, Sarup Chand, Bakhtawar Singh, Bela Pardhan, Joginder Singh Lambardar, Dilber Singh, Hari Chand, Prem Parkash etc. The defendant/appellant has claimed that he has been ready and willing to perform his part of the contract. Later on a family settlement was arrived at between the appellant and his mother, pursuant to which the shop was given to him vide settlement deed dated 14.5.1993. It was denied that the plaintiff/respondent had paid Rs.50,000/- to the mother but it is admitted that the dispute took place between the brothers for the shop in question which was later on resolved with the intervention of Mangat Ram, elder brother of the parties and the plaintiff had received Rs. 50,000/- from the defendant/appellant and had promised not to claim any RSA No. 848 of 2010 (O&M) 3 share in the disputed shop. It is also alleged that his mother Manohari Devi, at her own accord and free will was recognising his as owner since 11.8.1992 vide settlement dated 14.5.1993. It was alleged that the sale deed dated 30.7.1998 is a result of fraud. In the nutshell the defendant/appellant had claimed the possession over the shop in dispute as transferee in part performance of the agreement to sell dated 5.11.1992 and in the alternative, ownership on the basis of family settlement dated 14.5.1993. On the pleadings of the parties, following issues were framed on 10.3.2003:- 1. Whether plaintiff is entitled to possession as owner of shop bearing M.C.No. 3397,ward No.5 (Old) and new No.308, Ward No.5 as prayed for ? OPP 2. Whether plaintiff is entitled to recovery of mesne profit at the rate of Rs.2000/- per month from the date of suit till delivery of possession ? 3. Whether the suit is not maintainable ? 4. Relief: After obtaining evidence, both the Courts below have decreed the suit of the plaintiff/respondent holding him entitled to possession of the shop in dispute and mesne profits at the rate of Rs.20/- per month from the date of filing of the suit till the date of its realisation. Learned counsel for the appellant has vehemently argued that in pursuance of settlement Ex.D4, possession of the shop in dispute was handed over to him by Manohari Devi on 14.5.1993 and was left with no right, title or interest which could be further transferred by her to the plaintiff/respondent on 30.7.1998 through sale deed Ex.P-1. Similar RSA No. 848 of 2010 (O&M) 4 argument was raised by the learned counsel for the appellant before the learned first Appellate Court which has been dealt with in para Nos. 17,18 and 19. 17. It is vehemently contended by Counsel for the appellant that in pursuance of the settlement Ex.D4, the possession of the suit shop was already handed over to appellant by Manohari Devi on 14.5.1993 and as such Smt. Manohari Devi left no right, title, or interest to sell the suit shop in favour of the respondent on 30.7.1998 through Ex.P1. After going through the contents of Ex.D4 (which has been sought to be proved by DW2 Sarup Chand), it is made out as if the possession of the shop in question is handed over by Manohari Devi to appellant Dev Raj by declaring as if he alone is serving. Even in Ex.D4 it is recorded that no other heirs will have right to the possession of the shop in dispute. The possession is nine-tenth in law, but delivery of possession does not amount to relinquishment of the ownership rights. The ownership is distinct than that of possession and as such if on the strength of Ex.D4 possessory right of the shop relinquished in favour of the appellant, then due to that alone, the appellant did not became owner of the suit shop. So the submissions made by Counsel for the appellant has no force that in view of the execution of Ex.D4, Smt. Manohari RSA No. 848 of 2010 (O&M) 5 Devi left no title in the suit shop. Beside Ex.D4, is not a registered deed and as such the same rightly not relied upon by the learned trial Court holding it to be a deed of relinquishment of title due to which Registration required under the relevant provisions of section 17 of the India Registration Act. Ex.D4 even if taken as family settlement despite that the same does not confer title qua the shop in question on the appellant and as such just on strength of Ex.D4, the appellant can not be treated as owner albeit he can be treated in possession due to relinquishment of the possessory rights by the original owner in his favour. Rather in view of the contents of Ex.D4, the possession of the appellant was permissive and as such this document Ex.D4 did not confer ownership rights on appellant. The citations qua the registration or non-registration of a family settlement deed as such not of much relevancy. 18. Even if on receipt Ex.D1, the respondent has admitted his signatures while appearing as PW1, despite that it is made out as if part of the earnest money alone was received. However part payment of the earnest money does not confer any title because even agreement of sale does not confer any right, title and interest in favour of the prospective purchaser. Ex.D2 is a writing just sowing as if settlement was arrived at between the RSA No. 848 of 2010 (O&M) 6 parties for getting their applications presented before the police with the understanding that whatever decision qua disputed shop will be given by the Court or will be taken in gathering of relatives, same will be binding upon the parties. So Ex.D2 even does not confer any title. 19. Much reliance has been placed by the appellant on Ex.D3 for arguing that on strength of Ex.D3, the appellant became owner of the suit shop. However this document Ex.D3 is an agreement of sale between original owner Manohari Devi and the present appellant Dev Raj, vide which the appellant agreed to purchase the share in the suit shop for a consideration of Rs. 50,000/- after paying the earnest money of Rs. 20,000/- on 5.11.1992. The date of execution and registration of the sale deed was fixed as 2.2.1993 and the balance sale consideration was to be paid at the time of execution and registration of the sale deed on 2.2.1993, if the contents of Ex.D3 taken of its face value along with the statement of DW1 in this respect. However it is admitted by the appellant as DW1 that even after the execution of this agreement, he did not pay the balance sale consideration of Rs. 30,000/-. Rather DW1 and DW2 claimed as if when offer for paying the balance sale consideration made by appellant, then his mother claimed that he will take the balance amount, but did not accept the same. It is unbelievable that on offer being made by DW1 of payment of balance sale consideration of Rs. 30,000/-, the mother of the parties would not have accepted that amount. Rather there are contradictions in the statements of DW1 and DW2 RSA No. 848 of 2010 (O&M) 7 qua the fact as to when this amount of Rs. 30,000/- was offered. If DW1 claimed that this amount of Rs. 30,000/- was offered by him to his mother, then to the contrary DW2 claimed as if this amount was offered by respondent Baini Parshad, who refused to accept the same. In view of this contradictions, it can not be believed that actually the appellant offered to pay the balance sale consideration of Rs. 30,000/- in performance of his part of the agreement of sale Ex.D3. No suit for specific performance of the agreement to sell even shown to be filed by the appellant at any point of time for claiming the enforcement of Ex.D3. So readiness and willingness on the part of the appellant in abiding by the terms of Ex.D3 not at all established”. In this Court also, learned counsel for the appellant has submitted that by virtue of settlement Ex.D-4, the appellant has become owner whereas the bare reading of document Ex. D4 shows that Manohari Devi, his mother had only delivered the possession of the shop in dispute to the appellant which does not clothe him with the ownership right. As a matter of fact, the plaintiff/respondent had become owner of the shop in dispute by virtue of sale deed dated 30.7.1998 (Ex.P-1). Hence, I do not find any question of law much-less substantial involved in this appeal to set aside the judgment and decree of the Courts below which has been rendered by the Courts below by recording concurrent findings of fact on record. In view of the above discussion, I do not find any merit in the present appeal and the same is hereby dismissed in limine but without any order as to costs. 27.8.2010 (Rakesh Kumar Jain) RR Judge