Punjab-Haryana High Court
Atam Parkash vs Om Parkash And Others on 21 January, 2025
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2025:PHHC:008009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
116
RSA No.524 of 2023 (O&M)
Reserved on : 07.01.2025
Date of Decision: 21.01.2025
Atam Parkash ....Appellant
VERSUS
Om Parkash & Ors. ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Rohit Mittal, Advocate for the appellant.
ALKA SARIN, J.
1. The present appeal has been preferred by the defendant No.1- appellant against the judgment and decree dated 24.02.2016 passed by the Trial Court and the judgment and decree dated 02.12.2022 passed by the First Appellate Court decreeing the suit for partition filed by the plaintiff- respondent Nos.1 to 3.
2. The brief facts relevant to the present lis are that the parties trace their lineage to Ramsaranchand who had five sons and two daughters. Ramsaranchand died in 1994 and the parties are his legal heirs. According to the plaintiff-respondent Nos.1 to 3, the plaintiff-respondent No.1 is co-owner to the extent of 1/7 share while plaintiff-respondent Nos.2 and 3 are together co-owners to the extent of 1/7 share. The original five defendants are co- owners to the extent of 1/7 share each. It was pleaded that the co-sharers were unable to develop their respective shares without getting the suit properties 1 of 6 ::: Downloaded on - 22-01-2025 06:21:37 ::: Neutral Citation No:=2025:PHHC:008009 RSA No.524 of 2023 (O&M) 2 partitioned and that the plaintiff-respondent Nos.1 to 3 wanted to develop their shares by getting their separate possession by way of partition of the suit properties. It was alleged that despite repeated requests the defendants had not agreed to settle the matter, hence the suit for partition. The suit was contested by the defendants by filing separate sets of written statements. In his written statement and counter-claim the defendant No.1-appellant raised preliminary objections and took the plea that the suit properties did not match the site plan and the documents of ownership. Regarding one set of the suit properties it was alleged that the defendant No.1-appellant had spent a huge amount of money in raising construction thereon and hence the plaintiff-respondent Nos.1 to 3 could not seek its partition. It was further averred that Ramsaranchand had given a writing to the municipal authorities in 1985 that the defendant No.1-appellant would be owner of 1064 sq. yards and on the basis of that writing the defendant No.1-appellant was recorded as owner and was paying the house tax. It was also alleged that the suit was bad for partial partition as certain properties had not been included and also that the defendant No.1-appellant was owner of some suit properties. The other defendants also contested the suit. In the replication the contents of the plaint were reiterated and those of the written statements were denied.
3. On the basis of the pleadings of the parties the following issues were framed :
1. Whether plaintiffs are entitled to partition of the properties mentioned in the schedule ? OPP 2 of 6 ::: Downloaded on - 22-01-2025 06:21:37 ::: Neutral Citation No:=2025:PHHC:008009 RSA No.524 of 2023 (O&M) 3
2. Whether the defendant no.1 is exclusive owner in possession of the property no.1 mentioned in schedule ?
OPD
3. Whether the suit is not maintainable ? OPD
4. Whether the plaintiffs have no cause of action and locus standi to file the present suit ? OPD
5. Whether the plaintiffs are estopped by their act and conduct ? OPD
6. Whether the suit has not been properly valued ? If so, what effect ? OPD
7. Whether the defendants are entitled to special cost ? OPD
8. Whether the defendants are entitled to special cost ? OPD
9. Whether the counter claim of the defendant No.1 is liable to be decreed ? OPD
10. Whether the defendant no.2 is exclusive owner in possession of the property no.2 mentioned in schedule as alleged ? OPD
11. Relief.
4. The Trial Court decreed the suit vide judgment and decree dated 24.02.2016 by passing a preliminary decree. The counter-claim of the defendant No.1-appellant was dismissed. Aggrieved by the same an appeal was preferred only by the defendant No.1-appellant which appeal was also 3 of 6 ::: Downloaded on - 22-01-2025 06:21:37 ::: Neutral Citation No:=2025:PHHC:008009 RSA No.524 of 2023 (O&M) 4 dismissed by the First Appellate Court vide judgment and decree 02.12.2022. Hence, the present regular second appeal.
5. Learned counsel for the defendant No.1-appellant has contended that both the Courts have erred in decreeing the suit of the plaintiff-respondent Nos.1 to 3. It is submitted that the defendant No.1-appellant had raised construction on a part of the suit properties by spending a huge sum of money and the plaintiff-respondent Nos.1 to 3 had no right to the same. It is contended that the suit was also bad for partial partition as certain properties of Ramsaranchand had not been included. As per learned counsel, the defendant No.1-appellant had sale deeds qua a certain portion in his favour so those portions could not be included in the suit for partition. It is urged that the municipal record also recognizes the defendant No.1-appellant as owner of some portion of the suit properties. As per counsel the impugned judgements and decrees are based upon conjectures and surmises and cannot be sustained.
6. I have heard learned counsel for the defendant No.1-appellant.
7. Both the Courts have reached concurrent findings of fact that the suit properties were owned by Ramsaranchand. The parties being his heirs succeeded to the same as per their shares. The plaintiff-respondent Nos.1 to 3 are entitled to get their shares partitioned. Merely because the defendant No.1- appellant may have spent some money in raising construction on some part of the jointly owned property would not debar the other co-owners from seeking their separate shares. Regarding the plea of partial partition, it was found that the properties allegedly excluded from the suit were infact forming part of the suit properties. Further, entries in the house tax records do not confer title.
4 of 6 ::: Downloaded on - 22-01-2025 06:21:37 ::: Neutral Citation No:=2025:PHHC:008009 RSA No.524 of 2023 (O&M) 5 Merely because the municipal authorities issued house tax notices to the defendant No.1-appellant and he paid the same would not mean that he is owner of the said properties. The two sale deeds (Ex.PW2/E and Ex.PW-2/F) pressed into service by learned counsel for the defendant No.1-appellant would also not come to his assistance. It has been found by the Trial Court that "when the said property was purchased, there was a joint family with father Sh. Ramsaranchand Mittal, who was Karta of the family and who had paid the total sale consideration to Mange Ram Gupta as has been admitted by defendant no.1 in his statement on oath and also mentioned in the sale deed Ex.PW-2/E. It is also important to note that the said 533 sq. yards, which is clubbed with other properties and situated within one boundary wall has been continuously in possession of father Sh. Ramsaranchand Mittal and after his death in possession of all the heirs. All the heirs including plaintiff had been enjoying the possessing of the property. Defendant no.1 had never been in exclusive possession of the same". The First Appellate Court held that "Therefore, all the legal heirs including the plaintiffs had been enjoying the possession of the property. So, the defendant no.1 had never been in exclusive possession of the same. Hence, in the opinion of this court, the trial court committed no error while making the observations that he cannot claim himself to be exclusive owner of area measuring 533 sq yards because finding the name of the family member in the sale deed does not mean that the person mentioned in the sale deed is exclusive owner of that property". It is well settled that the intention of the person who contributed the purchase money has to be decided on the basis of the surrounding circumstances; the relationship of the parties; the motives governing their action in bringing 5 of 6 ::: Downloaded on - 22-01-2025 06:21:37 ::: Neutral Citation No:=2025:PHHC:008009 RSA No.524 of 2023 (O&M) 6 about the transaction and their subsequent conduct, etc. All these factors, when applied to the present case, make it clear that the two sale deeds were not intended for the sole benefit of the defendant No.1-appellant alone. Learned counsel for the defendant No.1-appellant has not been able to convince this Court that the findings recorded by the Trial Court and the First Appellate Court are erroneous in any manner. No cogent and reliable evidence has been pointed out to convince this Court to take a divergent view from the one taken by both the Courts. No other point was argued.
8. In view of the above, I do not find any merits in the present appeal. No question of law, much less any substantial question of law, arises in the present case. The appeal, being devoid of any merits, is accordingly dismissed. Pending applications, if any, also stand disposed off.
( ALKA SARIN ) 21.01.2025 JUDGE Ankur NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO 6 of 6 ::: Downloaded on - 22-01-2025 06:21:37 :::