Punjab-Haryana High Court
Chander Bhan And Others vs Gobind Lal And Another on 21 May, 2010
Author: L. N. Mittal
Bench: L. N. Mittal
R. S. A. No. 1974 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : R. S. A. No. 1974 of 2010
Date of Decision : May 21, 2010
Chander Bhan and others .... Appellants
Vs.
Gobind Lal and another .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Sudhir Aggarwal, Advocate
for the appellants.
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L. N. MITTAL, J. (Oral) :
Legal representatives of original defendant Moten Dass have filed the instant second appeal having remained unsuccessful in both the courts below.
Suit was filed by Gopi Ram (since deceased and now represented by respondents as his legal representatives). Original plaintiff and defendant were real brothers. The plaintiff alleged that both of them jointly purchased one-fourth share in the disputed shop vide sale deed dated 06.09.1971 and accordingly, plaintiff and defendant had 1/8th share each in the said shop. Relations between the parties became strained and therefore, the plaintiff sought possession of his half share of the disputed shop by R. S. A. No. 1974 of 2010 2 partition.
The defendant admitted that he is brother of the plaintiff. The defendant, however, pleaded that he paid the entire sale consideration before Sub-Registrar at the time of registration of sale deed, but on account of love and affection for the plaintiff, the sale deed was got executed in favour of both of them. The defendant also alleged that later on, he also purchased the share of plaintiff in the shop, which stood recorded in the sale deed in the name of plaintiff by paying consideration for the same to the plaintiff, but no writing was executed for the same on account of love and affection between the parties being brothers. It was thus averred that the disputed shop is not joint shop of the parties and rather defendant is exclusive owner in possession thereof and plaintiff has no right, title or interest therein. The defendant also took the plea that he has become owner of the disputed shop by adverse possession.
Learned Civil Judge (Senior Division), Panipat, vide judgment and decree dated 15.09.2009, decreed the plaintiff's suit. The suit was decreed for possession by partition. First appeal preferred by legal representatives of defendant has been dismissed by learned Additional District Judge, Panipat, vide judgment and decree dated 15.12.2009. Feeling aggrieved, legal representatives of defendant have preferred the instant second appeal.
I have heard learned counsel for the appellants and perused the R. S. A. No. 1974 of 2010 3 case file.
Admittedly, sale deed of the disputed share in the shop is in favour of both the plaintiff and the defendant in equal shares. If only one of them i.e. defendant was present at the time of registration of the sale deed, it would not depict that plaintiff did not have half share in the suit property, as recited in the sale deed. On the other hand, it is not necessary that all vendees should be present at the time of registration of sale deed. The defendant never challenged the aforesaid sale deed regarding half share in the suit property being in favour of the plaintiff. The sale deed is dated 06.09.1971, whereas the plaintiff instituted the instant suit on 24.05.2001. The defendant remained silent throughout the aforesaid period of almost thirty years.
The defendant's plea is falsified by his own version. The defendant alleged that he had paid the entire sale consideration at the time of registration of sale deed, although names of both the brothers were recited in the sale deed as vendees. The defendant further alleged that later on, he also purchased the share of the plaintiff by paying him price thereof. If, in the first instance, the defendant had paid the entire sale consideration, it is not explained why he paid the price of share of the plaintiff to him for the second time, when the plaintiff had no share in the shop.
Learned counsel for the appellants contended that the defendant paid the said price in order to resolve the dispute because name of the R. S. A. No. 1974 of 2010 4 plaintiff appeared in the sale deed. However, if it had been so, the defendant would not have paid the amount without getting necessary writing from the plaintiff that he would no longer have any share in the shop. However, admittedly, there is no such writing. If the plaintiff, without having any share in the shop, was taking undue advantage of his name appearing in the sale deed and if, for this reason, the defendant paid the amount to the plaintiff, the defendant would have certainly got requisite writing from the plaintiff, so that the plaintiff may not take similar undue advantage in future. The root cause of the dispute would have then finished, if the defendant had paid the amount and got the requisite writing. It cannot be believed that the plaintiff was taking undue advantage of his name being there in the sale deed and still the defendant paid the amount to the plaintiff without any writing.
The defendant has also raised the plea of becoming owner by adverse possession. However, the same is also not substantiated. On the other hand, defendant being co-sharer, could not become owner of the disputed shop by adverse possession unless ouster of the plaintiff was proved. However, the defendant has neither pleaded such ouster nor proved the same.
Both the courts below, on appreciation of evidence, have arrived at concurrent finding against the defendant. The said finding is not perverse or illegal in any manner. No question of law, much less substantial R. S. A. No. 1974 of 2010 5 question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine.
May 21, 2010 ( L. N. MITTAL ) monika JUDGE