Punjab-Haryana High Court
Smt. Bhagwanti Devi vs Mat Ram (Dead) Through L.Rs. on 5 March, 2003
Equivalent citations: (2003)135PLR585
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. This is plaintiffs appeal against the judgment and decree passed by the courts below dismissing their suit for declaration to the effect that Puran Chand plaintiff is the owner in possession of 1/4th share in the land measuring 6 kanals 11 marlas comprising in Khasra No. 1075 situated in the area of Hansi.
2. Brief facts out of which the present appeal arises are that one firm Nanu Ram Mat Ram was a lessee of land comprising in Khasra Nos. 9719 and 9721 new Nos. 1975 and 1077 since 7.3.1946. Partners of the said firm were Nanu Ram and Paras Ram sons of Ghashi Ram as members of Bindaban Mamraj Mal HUF as also Sangat Singh son of Ganga Ram, Mat son of Mamraj Singh and Puran Chand son of Sarup Singh was members of firm HUF Mamraj Sarup Singh. Said firm had a cotton ginning factory which was on plot Nos. 1075 as well as 1077 bearing of old khasra No. 9719 and 97821. The firm consisting of partners Paras Ram, Puran Chand and Mam Raj purchased land comprising in Khasra No. 1077 vide registered sale deed dated 23.2.1966 in the sum of Rs. 25,000/- whereas owners of Khasra No. 1075 were Muslims who migrated to Pakistan after partition. Khasra No,1075 was taken on yearly lease of Rs. 150/- by the partners.
3. In 1949 Nanu Ram and Paras Ram partitioned their HUF and the share of Nanu Ram came to Paras Ram and a new partnership deed was executed and the firm name was changed to Mat Ram Paras Ram. Paras Ram became partner in his individual capacity. A partnership deed was executed on 8.6.1949. After the death of Sangat Singh, new partnership deed was executed on 1.4.1956. Sangat Singh has died issueless, who was member of HUF Mamraj Sarup Singh. As per this partnership, Mat Ram son of Mamraj Mal and Puran Chand son of Sarup Singh to the extent 1/4th share each along with Paras Ram son of Ghasi Ram as partner of 1/2 share, became partners of firm Mat Ram Paras Ram. In 1963, this HUF firm was partitioned including the factory. Thereafter, a partnership was constituted as partners in their individual capacity with the old firm name i.e. Mat Ram Paras Ram. Thus, Mat Ram and Puran Chand had 1/4th share each whereas Paras Ram had half share in this firm Mat Ram Paras Ram.
4. Another partnership deed was executed on 27.5.1966 after the death of Paras Ram. In the said partnership deed, the share of Mat Ram and Puran Chand was 1/4th each as in the previous partnership whereas Shri Krishna as Kartar represented the other half share of Paras Ram.
5. Since Khasra No. 1075 vested in Custodian on account of the migration of Muslims, therefore, the land measuring 6 kanals 11 marlas comprising in Khasra No. 1075 was purchased in the sum of Rs. 3000/- from Custodian Department vide conveyance deed dated 29.4.1968. It is the claim of the plaintiff that it is the firm who has purchased the said property and the sale consideration was deposited by the firm. However, in the conveyance deed which was executed on 29.4.1968, his name has not been mentioned although he has paid his share of Rs. 750/- which is clear from the record of the firm including Rokar Bahi (Cash book) and Khata Bahi (Ledger account). On these facts, the plaintiff filed the present suit on 20.12.1976.
6. The suit was contested by Mat Ram who denied that the plaintiff has paid a sum of Rs. 750/-. It was alleged that the accounts of the firm are in possession of the plaintiff, therefore, any entry made in such account is not binding on the rights of the defendants. He has asserted that he has paid a sum of Rs. 1500/- from his own account.
7. On the pleadings of the parties, the learned trial court framed the following issues:
1. Whether the plaintiff is owner in possession of 1/4th share of the suit land measuring 6 kanals 11 marlas?OPP
2. Whether the conveyance deed dated 29.4.1969 registered on 8.6.1968 and mutation No. 3052 dated 18.5.1969 about the suit land are illegal, null and void and has got no effect on the rights of the plaintiff as alleged in the plaint?OPP
3. Whether the suit in the present form is maintainable?OPP
4. Whether the plaintiff has locus-standi to file this suit?OPP
5. Whether the suit is not properly valued for the purpose of court fee?OPP
6. Whether the suit is within time?OPP
7. Relief.
8. The learned trial court held that the plaintiff has failed to prove the payment of Rs. 750/-. The learned trial court found that the payment of Rs. 1500/- has been made by Mat Ram in view of the statement of D.W.2 Raj Kumar. The learned trial court also returned finding on issue No. 6 against the plaintiff holding that the suit of the plaintiff is barred by limitation, holding that the right of the plaintiff to seek declaration arose on the date of payment allegedly made i.e. 7.2.1968 and thus, the suit is beyond the period prescribed.
9. However, the First Appellate Court reversed the finding of the learned trial court on issues No. 1 and 2 and held that the name of Puran Chand deceased was omitted in the conveyance deed dated 29.4.1968, Ex. D.1 either as a result of inadvertence and recklessness or in consequence of fraud. The First Appellate Court found that it is admitted case of the parties that the heirs of Puran Chand continue to be partner to the extent of 1/4th share in the firm. It was found that Paras Ram reflected to be owner to the extent of 1/2 share because he had the said share in the partnership. The First Appellate Court was of the opinion that the purchase of half share in the land in question by Mat Ram by himself and by ignoring Puran Chand deceased cannot be accepted. However, the First Appellate Court found that the suit filed by the plaintiff is beyond period of limitation having been filed after more than 3 years of accrual of cause of action i.e. from the date of registration of the sale deed and that of mutation dated 8.5.1969 and consequently dismissed the suit.
10. The learned First Appellate Court has relied upon a Single Bench judgment of this Court reported as Smt. Sharifan alias Shanti v. Ibrahim alias Dharamvir, 1975 P.L.J. 293 to hold that the suit is barred by limitation in view of Article 58 of the Limitation Act which lays down limitation of three years for filing suit to obtain any other declaration and for such suits time begins to run when the cause to sue first accrues. It was found that the right to sue accrued to the plaintiff on the date of conveyance deed and thus, the suit having been filed beyond three years is barred by limitation.
11. Learned counsel for the appellant submitted that the view of the learned First Appellate Court that the suit is barred by limitation is clearly erroneous. It was contended that the Single Bench judgment relied upon has since been reversed in Ibrahim alias Dharam Vir v. Smt. Sharifan alias Shanti, 1979 PLJ 469 wherein reliance has been placed on Niamat Singh v. Darbari Singh etc. (1956)58 PLR 461. He also placed reliance on a judgment given by this Court in RSA No. 2934 of 2000 decided on 5.12.2002.
12. I have heard the learned counsel for the parties on this issue at length. The view taken by the learned First Appellate Court is not sustainable. The substantial question of law which arises is "whether cause of action to seek a declaration to the effect that the plaintiff is owner in possession arises on the date of execution of the sale deed and/or mutation".
13. It could not be disputed that the plaintiff is a partner of the firm and as partner he enjoys the benefits of the firm including the possession of the property purchased by virtue of conveyance deed dated 29.4.1968, Ex. D.1. Since the plaintiff continues to be in possession of the suit land along with the defendant and thus, his suit could not be dismissed on the ground that it is beyond the period of limitation. The cause of action in such case would arise only when there is any threat to his title. According to the plaintiff such threat arose when Improvement Trust, Hansi served a notice under Section 9 regarding acquisition of land comprising in Khasra No. 1075. At this stage on inspection of record he came to know about the omission of his name in the sale deed and in the mutation.
14. The First Appellate Court has held the suit barred by limitation on the basis of Single Bench Judgment of this Court which has been reversed by the Division Bench of this Court. The said Division Bench has approved the view expressed in an earlier Division Bench judgment reported as Niamat Singh v. Darbari Singh (1956)58 PLR 461. Recently it has been held in RSA No. 2934 of 2000 decided on 5.12.2002 that Article 58 of the Limitation Act has no applicability in the cases where the plaintiff is in possession and mere wrong entry of the mutation does not furnish any cause of action. Therefore, I am unable to uphold the findings recorded by the First Appellate Court that the suit of the plaintiff is beyond the period of limitation. Consequently, I reverse the findings on issue No. 6 and hold that the suit of the plaintiff is within the period of limitation.
15. Faced with this situation, the counsel for the defendant argued that the findings of the First Appellate Court on issues No. 1 and 2 itself is not sustainable and is not supported by evidence on record. I am unable to accept such argument of the learned counsel for the respondents. The execution of various partnership deeds between the parties is not disputed by any of the parties. A perusal of the partnership deed Ex, PW 5/A would show that it is a partnership deed between Mat Ram and Puran Chand dated 1.4.1963. It is stipulated therein that earlier the parties were carrying on business as member of HUF, whereas now it is desirable to divide the business capital and to run the business in partnership. Ex. PW 5/C is an agreement dated 2,4.1963 between Mat Ram and Puran Chand wherein it has been mentioned that the business of HUF firm was divided on 31.3.1963 and thereafter, the business had been started in partnership w.e.f. 1.4.1963. The immovable properties had also been divided on 1.4.1963. It is recited in the agreement that the family business was being carried on in the name and style of M/s Mat Ram Paras Ram, Hansi. The capital of family business was divided and with that capital the business had been started in partnership by the parties after adopting all the assets and liabilities of HUF at book value on 1.4.1963. The cost of the building and machinery as divided. Clause 4 of the said agreement deals with the factory of the firm building on the land which is partly on permanent lease and partly on fixed tenure lease. The said clause reads as under:-
"4. That the factory of M/s Mat Ram Paras Ram is built on the land which is partly on permanent lease and partly on fixed tenure lease. If in future any benefits or rights are acquired due to this tenancy then those shall belong to the partnership of M/s Mat Ram Paras Ram in accordance with the shares in profit and loss irrespective of the fact that the lease may be in the name of any of the partner of that firm."
16. Clauses 6 and 7 deal with the property acquired by Mat Ram and Puran Chand either by gift or from self-acquired property. Clause 8 deals with the settlement of rights over the household articles. It is recited in Clause 11 that the relationship between the parties is contractual w.e.f. 1.4.1963 for business purpose which can be terminated by mutual consent at any time.
17. The plaintiff has also produced ledger account of Puran Chand Ex. PW 5/D and Mat Ram Ex. PW 5/F for the year 1967-68. The plaintiff has also produced cash boom entry dated 7.2.1968 wherein a payment of Rs. 1500/- i.e. Rs. 750/- each on the part of Mat Ram and Puran Chand has been made to be Custodian on their behalf. The counsel for the respondents submitted that the cash book entry is dated 7.2.1968 whereas the ledger account is dated 1.4.1967 and thus, the accounts books are not reliable. However, the contention of the counsel for the respondent is factually incorrect. The ledger account is for the year 1967-68. The first entry on the right side is the balance brought forward from the previous account dated 1.4.1967 amounting to Rs. 59397.73. On the left side an amount of Rs. 64482.57 has been carried forward to the ledger account of the next year i.e. 1.4.1968. The right side contains the other entries in the account of Puran Chand. Similar are the entries in respect of account of Mat Ram. Thus, it is apparent that the reading of documents Ex. PW5/D and Ex. PW5/F by the counsel for the respondent is not correct. The First Appellate Court has found that it could not be deemed or visualised that it would at all be difficult for Puran Chand deceased to part with small amount Rs. 750/-. He was one of the Pattedars in the land in question was certainly supposed to be one of the vendees. The learned lower appellate court was not able to discover any lacuna or fabrication in the entries covered by Ex. PW 5/E. The appellate court also relied upon the partnership deed dated 22.5.1960 Ex. PW 5/B wherein the building and machines belong to the parties in the ratio of 25 per cent Puran Chand, 25 per cent Mat Ram and 50 per cent Paras Ram.
18. After going through the record carefully, I am unable to disagree with the findings recorded by the fist appellate court in this respect. The parties have purchased land measuring 6 kanals 7 marlas comprising in Khasra No. 1077 vide registered sale deed dated 23.2.1966 in the sum of Rs. 25,000/-. The Cotton ginning factory is situated on Khasra Nos. 1077 and 1075. The partners were lessess under Custodian in respect of Khasra No. 1075. The partnership deed clearly specify the share of Puran Chand to the extent of 25 per cent. In fact Clause 4 of the agreement shows that the parties will retain their right in the land in the same ratio as share in the profit and loss. The amount of Rs. 750/- was not an amount which would not be deposited by Puran Chand. There is no evidence of any conduct of Puran Chand whereby it could be inferred that he has any intention or not participating in purchase of the properties to the extent of his share comprising in Khasra No. 1075. He was partner in the firm which carried the business of cotton ginning factory and thus, omission of his name in the conveyance deed Ex. D.1 seems to be either on account of inadvertence of recklessness. Consequently, I find no illegality in the findings recorded by the First Appellate Court in this respect.
19. Since the learned First Appellate Court has dismissed the suit only on account of suit being beyond the period of limitation and such finding having been set aside the suit of the plaintiff is liable to be decreed. Consequently, I accept the present appeal after setting aside the finding of the First Appellate Court on issue No. 6 and decree the suit of the plaintiff with costs throughout.