Punjab-Haryana High Court
Harish Kumar Arora vs Manohar Lal And Others on 13 January, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2867 of 2012 (O&M)
Date of decision: 13th January, 2014
Harish Kumar Arora
Appellant
Versus
Manohar Lal and others
Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. A.P. Bhandari, Advocate for the appellant.
Mr. I.K. Mehta, Sr. Advocate with
Mr. Ranjit Mehta, Advocate,
Mr. S.C. Mahana, Advocate,
Mr. R.K. Dogra, Advocate for respondents No.1 to 3.
Mr. K.B. Sharma, Advocate for respondents No.4 & 5.
RAKESH KUMAR GARG, J.
Appellant filed the instant suit against defendant- respondents No.1 to 3 seeking a declaration that the award dated 22.03.2003 passed in their favour in Civil Suit No.115 dated 04.03.2003 titled as 'Jagdish Kumar and another v. Manohar Lal' was illegal and was passed on misrepresentation of facts and distortion of the fact that house bearing Municipal No.1-E/68 NIT Faridabad, measuring 233 square yards is ancestral property and not the self-acquired property, and the same is not binding upon the plaintiff as well as proforma- Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 2 respondents and was liable to be set aside. The plaintiff further sought a decree of permanent injunction restraining defendants No.1 to 3 from alienating the suit property in any manner and dispossessing him from the suit property.
In brief, it is the case of the appellant that defendant No.1 had purchased a house bearing Municipal No.1-E/68 NIT Faridabad, measuring 233 square yards for a total price of `4,654.87 in pursuance of Rule 33 framed under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and a sum of `171.63 was adjusted against the claim of compensation made by defendant No.1 with the Ministry of Rehabilitation, Government of India in lieu of the property left in Pakistan. As such, the said house was purchased by defendant No.1 vide a Conveyance Deed executed on 17.01.1978 and registered on 16.05.1978 and the same was ancestral property and not the self- acquired property of defendant No.1. The plaintiff and defendant No.2 are the sons whereas defendant No.3 and proforma defendants are the daughters of defendant No.1. Defendant No.1 in collusion with defendants No.2 and 3 filed a Civil Suit bearing No.115 of 04.03.2003 by misrepresentation and concealment of actual facts and without impleading the plaintiff and defendants No.4 and 5, who are the co- sharers of the said house, got an award dated 22.03.2003 passed regarding partition of the said house amongst themselves, i.e. defendants No.1, 2 and 3, and got executed and registered the sale deed dated 18.04.2003. It was further pleaded that the plaintiff and defendants No.4 and 5 came to know about the said award dated Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 3 22.03.2003 when they asked the plaintiff to vacate the house and to reside separately as he has no right to live in the said house in any capacity. The plaintiff on coming to know about the aforesaid award along with defendants No.4 and 5 persuaded defendants No.1 to 3 to get the said award set aside and quashed, however, they paid no heed to the legitimate request of the plaintiff. Hence, the necessity arose to file the instant suit.
Upon notice, the defendants appeared and filed written statements. In his written statement, defendant No.1 admitted that he became the owner of the suit property by way of Conveyance Deed executed and registered in his favour by the Government of India as free-hold property. However, he denied that any part of the consideration was paid by the plaintiff or any portion of the price of any such ancestral property was adjusted against the sale consideration. It was also stated that there was no ancestral immovable property left in Pakistan and only a small bit of it was adjusted against the claim and the said adjusted claim was not of ancestral property but of the property owned by Mehar Chand (i.e. father of respondent No.1) in Pakistan. It was further submitted that decree in Civil Suit No.115 and its award were binding and not open to challenge as the property in question was self-acquired property of defendant No.1. It was further stated that the plaintiff was only a licensee under defendant No.1 in respect of the portion shown in red colour wherein he is residing along with defendant No.1 and had no independent right or interest in the same. The plaintiff was asked to vacate and his license was terminated by defendant Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 4 No.1. Denying rest of the contents of the plaint, dismissal of the suit was prayed for.
Defendants No.2 to 5 filed their joint written statement raising various preliminary objections. On merits, it was admitted that the house in question was purchased by defendant No.1 from Rehabilitation Department. It was denied that the same was an ancestral property. It was submitted that the said house was self- acquired property of defendant No.1. It was further submitted that the plaintiff used to abuse defendant No.1, quarrel with him and give severe beatings to him and harass defendants No.2 to 5 from time to time and being aggrieved from the acts and conduct of the plaintiff, defendant No.1 had debarred and disowned the plaintiff from his properties. A publication to this effect was also made that the plaintiff has no right, title or interest over the suit property. It was further stated that the decree/award passed in Civil Suit No.115 dated 04.03.2003 was legal and binding on the plaintiff. Denying rest of the contents of the plaint, dismissal of the suit was prayed for.
Apart from the written statement, defendant No.1 also filed counter-claim seeking a decree of mandatory injunction in respect of the property shown in red colour and marked by letters 'ABCD' in the site plan directing the plaintiff to hand over and vacate the property shown in red colour in the site plan, on the ground that defendant No.1 was owner of the house bearing No.1-E/68 NIT Faridabad and the said house was purchased by him and was his self-acquired property. It was further stated that out of love and affection and as a licensee the Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 5 plaintiff was living with him since his birth but he became disobedient and disrespectful and therefore, he was compelled to revoke the license on or about 15.03.2004 and the plaintiff was asked to vacate the premises in question but he refused to do so. Hence necessity arose to file the instant counter-claim.
The plaintiff-appellant filed written statement to the counter- claim and raised preliminary objections denying that the house in question was self-acquired property of the plaintiff, further reasserting that the same is an ancestral property and his possession was that of a co-parcener and not of a licensee.
On the basis of the pleadings of the parties, the following issues were framed:
1. Whether the award dated 22.03.2003 passed in Civil Suit No.115 dated 04.03.2003 is illegal, null and void?
OPP
2. Whether the plaintiff has no cause of action to file the present suit? OPD
3. Whether the suit is bad for mis-joinder of necessary parties? OPD
4. Relief.
In order to prove his case, the plaintiff examined himself as PW-1; Vijay Kumar, Clerk as PW-2; Ashok Kumar Khatri as PW-3 and Tilak Raj as PW-4. On the other hand, defendants also examined Arun Kumar as DW-1 and defendant No.1 himself appeared in the witness box as DW-2.
Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 6
However, from the pleadings of the parties, following issue was framed on counter-claim:
3A. Whether the plaintiff/respondent is liable to be evicted from the suit property being a licensee? OPD No fresh evidence was led by the parties on this issue as both the parties made their separate statements before the Court that the evidence already led on the main suit be read as evidence in the counter-claim.
After providing hearing to learned counsel for the parties, the trial Court decided issue No.1 in favour of the defendants and against the plaintiff. Issue No.3A was decided against defendant No.1/counter-claimant. Issues No.2 and 3 were decided in favour of the plaintiff, and ultimately the suit of the plaintiff was dismissed with costs vide judgment and decree dated 27.08.2010. The counter-claim filed by defendant No.1 was also dismissed. While dismissing the suit and the counter-claim, the trial Court observed as under:
"19. After hearing the learned counsel for the parties and carefully perusing the record this Court is of the view that in this case factual position regarding the relationship of parties is admitted. It is the case of the plaintiff and the plaintiff is bound to prove its case by leading cogent evidence. In this case the sole question whether the suit property i.e. House No.1E/68 NIT Faridabad is an ancestral property in the hands of defendant No.1 or not and the another fact which is required to be proved by the plaintiff is fraud, misrepresentation, concealment of facts and illegality in the alleged decree passed in suit No.115 of 4.3.03. The Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 7 plaintiff has to prove that suit property was allotted to defendant No.1 in lieu of the claim against the ancestral property in Pakistan which he had left after partition. No evidence whatsoever has been led by the plaintiff to prove that the suit property has been allotted to defendant No.1 in lieu of the claim of ancestral property left in Pakistan. In his cross-examination the plaintiff has only deposed that it is the ancestral property but no evidence had been led by him to prove the nature of the suit property as ancestral property in the hands of defendant No.1, he argued that Rs.171.63 paise have been adjusted qua the claim against the consideration of the alleged suit property. However, it does not prove that defendant No.1 was allotted the property in lieu of ancestral property left in Pakistan. Merely staying jointly does not prove that suit property is ancestral property. The plaintiff and defendant formed a co-partitioner and being a co-partitioner the plaintiff is entitled to share in the suit property. Further the PW2 has clearly deposed in his testimony before the Court that the alleged suit property has been allotted to defendant No.1. He further deposed that suit property has been purchased by Manohar Lal i.e. Defendant No.1 on 17.1.78 for a total sum of Rs.4654.87 paise and claim of Rs.171.63 paise was adjusted. He further deposed that conveyance deed of the suit property was executed on 17.1.78. In his cross- examination he deposed that all the installments of the suit property were deposited by defendant No.1 and he further deposed that it is correct that suit property has been purchased by Manohar Lal in an auction and according to the record no other person is share-holder in the suit property. Plaintiff also in his cross-examination admits that he had never seen the alleged suit property left in Pakistan as he was not born at that time. He has deposed that his Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 8 grandfather told him that the suit property has been allotted by his father i.e. defendant No.1 in lieu of property left in Pakistan but it itself does not establish that the suit property left in Pakistan is ancestral property in the hands of defendant No.1 as there is no cogent evidence available on record to prove this fact. PW3 also admits that defendant No.11 is owner of the suit property but plaintiff also resides alongwith him in the suit property. He further admits that sale deed has been executed in favour of Manohar Lal i.e. Defendant No.1 and he is owner of the suit property He further admits that the conveyance deed was also executed in the name of Manohar Lal. PW4 in his cross-examination also admits that sale deed of the alleged suit property was executed in favour of defendant No.1. He also admits that in the house tax record also the defendant No.1 is shown as owner of the suit property.
20. In view of these facts, this Court has come to the conclusion that the plaintiff has miserably failed to prove that suit property left in Pakistan was ancestral property in the hands of defendant No.1 and defendant No.1 was allotted the suit property in lieu of ancestral property left in Pakistan. As per their own testimony the conveyance deed was executed in favour of defendant No.1 i.e. his father. PW2 & PW4 have duly admitted the ownership in the name of defendant No.1, conveyance deed was also executed in favour of defendant No.1 for a sum of Rs.4654.87 paise. In this way the claim of the plaintiff that he is co-parcener of the suit property and the suit property is an ancestral property is not tenable. However, the suit property is self acquired property of defendant No.1 and it has been admitted by PW2 that all the installments qua the suit property have been deposited by defendant No.1. So this Court is of the view that the suit Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 9 property is self acquired property of defendant No.1. Merely adjustment of claim of Rs.171.63 paise against the sale consideration of alleged suit property itself does not establish that the suit property is an ancestral property. Hence, the defendant No.1 has every right to suffer any decree qua the suit property in favour of any body and the judgment and decree dated 22.3.03 has been rightly passed by the Court as there is no concealment of facts and misrepresentation of facts. Further no cogent evidence has been led by the plaintiff to prove the fraud, concealment of facts and misrepresentation of facts on behalf of the defendants as it is specifically mentioned in that case that he had already debarred his son Harish i.e. plaintiff. Further at the very outset it may be observed that the said award/decree dated 22.3.03 was passed on the basis of fraud but no ground of fraud has been pleaded or proved by the plaintiff on the record. It is settled proposition of law that when a fraud is alleged, the particulars are required to be pleaded. Order 6 Rule 4 of CPC also reads that in all the cases in which the party pleaded relies on any misrepresentation, fraud, breach of trust, willful default or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified from the firm aforesaid or shall be stated in the pleadings. However, if the averments made in the plaint are presumed, it becomes evident that there are no specific particulars of fraud pleaded in it. Mere general allegations that the fraud was committed while obtained the decree dated 22.3.03 in favour of defendant No.2 & 3 is a vague allegation. The plaintiff has further relied upon the judgment passed in case titled 'Harbans Lal Vs. Bhim Sain' 1977 CLJ (Civil) 260 wherein it has been held that when a witness has not been cross-examined on a Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 10 particular point of his examination in chief it shows that other party accepted that part. However, the facts of this case are not applicable to the facts of the present case and it will not discharge the onus of the plaintiff to prove its own case. The plaintiff further placed on record the authorities titled Dharamvir Vs. Naresh Kumar and others 2006(1) SLJ 221. But this authority is also not applicable to the facts of the present case.
21. It has been argued by learned counsel for the counter-claimant that the defendant No.1/counter claimant is the owner of the suit property vide conveyance deed dated 16.1.78. He further argued that he suffered a decree in favour of defendant No.2 & 3 in respect of the suit property on 22.3.03 and further argued that the plaintiff has been living with him out of love and affection as a licensee since his birth and he has revoked the license on or about 15.3.04, hence, it is argued that the plaintiff is liable to be evicted from the suit property. On the other hand learned counsel for the plaintiff/respondent has argued that the plaintiff is residing in the suit property as co-owner as he has a right by birth in the suit property. He further argued that it is an ancestral property and he is not a licensee, hence, the counter claim of the defendant is liable to be rejected outrightly. Further the plaintiff/respondent has also relied upon the case law titled Conrad Dias of Bombay Vs. Juseph Dias of Bombay 1995 (2) RCR 79 wherein it has been held that a son who is living with his father as a son is not a licensee. It is further held that the son also cannot claim any legal character but lives only as a member of family. This authority relied upon by the plaintiff himself also gone against the plaintiff. Further the counter claimant has not brought on record any of the evidence to prove as to what are the conditions of license and what was the time Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 11 and term for license and on what conditions the alleged license was revoked. In view of my above discussion the issue No.1 is hereby decided in favour of the defendants and against the plaintiff and issue No.3A is decided against the counter claimant/defendant No.1."
Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff filed an appeal viz. Civil Appeal No.289 of 18.09.2010 against dismissal of his suit; whereas defendant No.1 filed Civil Appeal No.293 of 20.09.2010 against dismissal of his counter- claim. Both these appeals were heard together by the first appellate Court.
It is relevant to notice at this stage that during the pendency of the aforesaid appeals, an application for leading additional evidence was also moved by the appellant stating that Mehar Chand, grandfather of the appellant, had executed a Will and the said Will was got registered by him with the Registrar, Ballabgarh on 23.07.1973 and from the aforesaid Will, it is clearly made out that the house in question was owned and possessed by the grandfather of the appellant; and thus, the evidence was necessary for the proper decision of the case. It was further stated that the appellant was not aware of the aforesaid Will earlier.
The said application was contested by the respondents. However, the prayer of the appellant to produce into evidence the registered Will dated 23.07.1973 executed by Mehar Chand, grandfather of the appellant, in respect of the house in dispute, to establish the fact that the suit property was ancestral in the hands of Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 12 respondent No.1 Manohar Lal, did not find favour with the first appellate Court. While rejecting the said prayer for leading additional evidence, the first appellate Court found that the said evidence being beyond pleadings cannot be allowed to be taken on record and there was absolutely no reference in the pleadings that the suit property was purchased by Mehar Chand, father of respondent No.1, from his own funds and was bequeathed to Manohar Lal by his father Mehar Chand by way of the Will in question. Not only this, even if for the sake of arguments, it is accepted that the suit property was received by Manohar Lal on the basis of the said Will, the property in question will be self-acquired property of Manohar Lal being inherited by him on the basis of said Will to the exclusion of other Legal Heirs. Moreover, it is pleaded case of the appellant that the suit property has been purchased by Manohar Lal from the Rehabilitation Department and the Conveyance Deed is also directly in the name of Manohar Lal.
Still not satisfied, the plaintiff has filed the instant appeal submitting that the following substantial questions of law arise in this appeal:
(1) Whether even if a small amount paid from the compensation of ancestral property for the purchase of a House, the house will become ancestral or self acquired?
(2) Whether the property which has been hotchpotch will get the character of ancestral property or the self-
acquired property?
Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 13 (3) Whether the findings given by the ld. Courts below are perverse and contrary to record?
(4) Whether the ld. Lower appellate Court has wrongly dismissed the application for additional evidence? (5) Whether the Will which has been produced on record is corroborative evidence?
Learned counsel for the appellant has vehemently argued that the property in question is ancestral at the hands of defendant No.1 and the findings of the courts below are liable to be set aside. Thus, the substantial questions of law, as raised in the grounds of appeal, do arise in this appeal.
Though, learned counsel for the appellant has vehemently argued before this Court that the first appellate Court has erred at law while not allowing the application for leading additional evidence, for the reasons recorded above no fault can be found with the order of the first appellate Court while rejecting the prayer of the appellant to lead the Will dated 23.07.1973 in additional evidence to prove his case.
At this stage, it may also be noticed that the only dispute in this case is as to whether the property in dispute is ancestral at the hands of defendant No.1 or is his self-acquired property.
A perusal of the judgments and decrees of the Courts below would show that there is ample evidence on record to prove that the property in dispute was self-acquired property of defendant No.1 as it is the pleaded case of the appellant himself that the said property was Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 14 purchased by Manohar Lal from the Rehabilitation Department vide Conveyance Deed Ex.P2. Moreover, there is absolutely no evidence on record to prove the fact that the property in dispute is ancestral at the hands of respondent No.1. Even while appearing in the witness box, the appellant has admitted in his cross-examination that sale deed of the house in question is in the name of his father.
However, an effort has been made before this Court to argue that a sum of `171.63 was adjusted towards the verified claim payable to Mehar Chand, father of defendant No.1, for the properties left by him in Pakistan and thus, the property in dispute will become ancestral property.
Firstly, there is no evidence on record to suggest that verified claim of `171.63 was received by Mehar Chand on account of his ancestral property left by him in Pakistan. Moreover, mere adjustment of the claim of `171.63 towards the sale price will not make the suit property as ancestral property as this portion of money has merged into the entire sale price contributed by respondent No.1. It has been laid down by this Court in 'Inder Singh (dead) through LRs v. Chhano and others' 2004(3) PLR 710 that where the ancestral property and non-ancestral part of the land is mixed up in such a way that it is difficult to find out as to which part of the land is ancestral or non-ancestral, it has to be held that the entire land is non-ancestral.
Thus, there is ample evidence on record to support the findings of the courts below to the effect that the property in dispute was self-acquired property of defendant No.1 and therefore, the Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 15 appellant has no right, title or interest in the same. In view thereof, no fault can be found with the findings so recorded by the courts below and respondent No.1 was competent to suffer decree dated 22.03.2003 in favour of respondents No.2 and 3 since defendant No.1 has been found to be the absolute owner of the suit property and therefore, status of the appellant in the demised premises was only of a licensee.
In view of the facts established on record, no fault can be found with the findings that such a license stood revoked. There is no denial to the facts that defendant No.1 has even issued a public notice to disown the plaintiff-appellant, who is his son; and therefore, no fault can be found with the judgment and decree of the first appellate Court whereby appeal filed on behalf of the plaintiff-appellant has been dismissed and the counter-claim of defendant No.1 has been decreed by accepting his appeal.
At this stage, it may further be noticed that the instant appeal is liable to be dismissed on one more ground i.e. res-judicata. Admittedly, the appellant has not challenged the judgment and decree dated 21.02.2012 passed in Civil Appeal No.293 of 20.09.2010 whereby counter-claim of defendant No.1 has been decreed against the appellant on the basis of the same findings.
At this stage, it may further be noticed that the appellant has also moved an application under order XLI Rule 27 CPC, viz. CM No.7703-C of 2012, to permit him to lead additional evidence by placing on record the documents (Annexures A-1 to A-10). This Court has gone through the aforesaid documents. All these documents show only one Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.2867 of 2012 (O&M) 16 fact that Mehar Chand, father of defendant No.1, had contributed some amount for purchase of the house in dispute. However, none of the documents proves the fact that such amount was derived from the ancestral property. Moreover, the appellant knew about his case from the very beginning, yet he failed to bring the relevant evidence on record during the trial. Thus, no case is made out to entertain such an application at this stage.
Thus, the substantial questions of law, as raised, do not arise at all in this appeal.
No merits.
Dismissed.
(RAKESH KUMAR GARG) JUDGE January 13, 2014 rps Singh Rattan Pal 2014.01.17 11:14 I attest to the accuracy and integrity of this document Punjab & Haryana High Court