Punjab-Haryana High Court
Roshan Lal And Anr. vs Resham Lal And Anr. on 21 July, 2004
Equivalent citations: (2005)139PLR637
Author: Viney Mittal
Bench: Viney Mittal
JUDGMENT Viney Mittal, J.
1.The plaintiffs having concurrently remained unsuccessful before the Courts below, have approached this Court, through the present Regular Second Appeal.
2. The plaintiffs filed a suit for declaration to the effect that they alongwith defendants are the joint owners in possession as coparceners of the suit property comprising of two shops and one house, as detailed in the plaint, and that, the decree dated July 30, 1976 obtained by Resham Lal, defendant No. 2 against his father Karam Chand, defendant No. 1 and grant-father Harditta Mal is null and void, ineffective and not operative qua the rights of the plaintiffs.
3. The averments in the plaint show that the plaintiffs claimed that Harditta Mal was the grand-father of the plaintiffs, defendant No. 2 and father of defendant No. 1. The suit property alongwith some other property was owned by Harditta Mal and during his life time. Harditta Mal partitioned the aforesaid property through partition deed dated January 28, 1951 between himself and his sons including Karam Chand, defendant No. 1 and that the suit property fell to the share of Karam Chand, defendant No. 1. Since then Karam Chand, defendant No. 1 had remained in possession of the suit property as Karta of the Joint Hindu Family. Resham Lal, defendant No. 2 proclaimed that he had become the exclusive owner of the shop in dispute by virtue of a decree dated July 30, 1976. The plaintiffs claimed that the said decree was passed on the admission of the claim of defendant No. 2 by Harditta Mal who had much prior to the passing of the aforesaid decree ceased to be the owner of the said property. On that basis, the plaintiffs claimed that Harditta Mal could not have suffered the aforesaid decree in favour of defendant No. 2. The validity of the decree was challenged on that ground seeking declaration as aforesaid.
4. The suit was contested by defendant No. 2. It was claimed that the plaintiffs have no right or locus standi to challenge the validity of the decree dated July 30, 1976 during the life time of their father Karam Chand, defendant No. 1. It was also claimed that the property in dispute was in exclusive possession of the defendants as owners and since the plaintiffs were not in possession of the suit property, therefore, the suit filed by them for declaration simplicitor was not maintainable. On merits, it was claimed that the suit property was not the co-parcenary property of the parties, nor Harditta Mal was having the same as co-parcenary or Joint Hindu Family property. The said property was purchased by Harditta Mal from Ajmer Singh etc. The factum of any partition of any Joint Hindu Family property was specifically denied by defendant No. 2.
5. The learned trial Court, on the basis of evidence available on the record, held that Ex.P2, jamabandi for the year 1946-47 shows that the shop in question bearing Khasra No. 1372/386, khewat No. 57 khatauni No. 118 was purchased by Harditta Mal from Ajmer Singh etc. and that there was no evidence on the record that Harditta Mal has purchased the property from the Joint Hindu Family funds or that any such sufficient nucleus existed with the Joint Hindu Family for acquisition of the said property.
6. The reliance of the plaintiffs on the partition deed was also negatived by the learned trial Court and the aforesaid deed was taken on record and marked as "A", since the same was unregistered and unstamped. It was further held that the plaintiffs were not proved to be in possession of the suit property which was shown to be in exclusive possession of the defendants. Accordingly, it was held that the suit filed by the plaintiffs for declaration simplicitor was not legally maintainable. On the basis of the aforesaid findings, the suit filed by the plaintiffs was dismissed by the learned trial Court.
7. The plaintiffs took up the matter in appeal. The learned first appellate Court re-appraised the entire evidence and came to the similar conclusions as were arrived at by the learned trial Court. All the findings recorded by the learned trial Court re-affirmed by the learned first appellate Court. Accordingly, the appeal filed by the plaintiffs was also dismissed.
8. The plaintiffs have remained dis-satisfied and have approached this Court through the present regular second appeal.
9. I have heard Shri Ashok Jagga, the learned counsel for the appellant and with his assistance have also gone through the record of the case.
10. Shri Ashok Jagga, the learned counsel for the appellants has primarily argued that the Courts below has committed error in law in not treating the aforesaid partition deed of 1951 as a proved document. According to Shri Jagga, the said deed did not require any registration and as such should have been accepted on the record and should have been relied upon by the learned Courts below.
11. However, I find myself unable to agree with the contention of the learned counsel for the appellant. A specific finding of fact has been recorded by the courts below that Harditta Mal was shown to be the absolute owner of the suit property inasmuch as he had purchased the land from Ajmer etc. on which the shop had been constructed. Once it was shown that the aforesaid property in the hands of Harditta Mal was not property of Joint Hindu Family property or ancestral, the question of any partition by Harditta Mal and his son or his grandson would not even arise. The reliance placed by the plaintiffs on the partition deed of 1951, in fact, would actually amount to creation of title for first time through the aforesaid deed which required compulsory registration and payment of stamp charges. Since the aforesaid document remains unregistered, therefore, the same was not rightly taken into consideration by the two Courts below.
12. It is not in dispute that the plaintiffs are not shown in possession of suit property. In fact, the evidence on record clearly depicts that the defendants had remained in exclusive possession of the same.
13. In view of the aforesaid fact, it is apparent that the suit for declaration simplicitor filed by the plaintiffs is barred by the provisions of Section 34 of the Specific Relief Act.
14. Accordingly, I find that the findings recorded by the Courts below do not suffer from any infirmity, nor shown to be contrary to the record of the case.
15. No other point has been urged.
16. Therefore, I find that no question of law, much less any substantial question of law, arises in the present appeal.
17. In view of the aforesaid discussion, I find no merit in the present appeal and the same is accordingly dismissed. There shall be no order as to costs.