Himachal Pradesh High Court
Ramesh Chand And Others vs Bidhi Chand And Another on 14 May, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No.542 of 2003
Reserved on : 7.5.2015
.
Date of Decision : May 14, 2015.
Ramesh Chand and others ....Appellants.
versus
Bidhi Chand and another ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
For the Appellants : Mr. Bhupinder Gupta, Senior
Advocate, with Mr. Ajit Singh
r Jaswal, Advocate.
For the Respondents : Ms Ranjana Parmar, Advocate.
Sanjay Karol, Judge
Suit land, admeasuring 1 kanal 19 marlas, is situate in Tikka Baloh, Hathol, Tehsil Nadaun, District Hamirpur, comprises of Khasra Numbers 62, 72 and 101.
2. Khasra No.62 is Khalwara (common thrashing ground), admeasuring 19 marlas and Khasra No.101 is a well, admeasuring 10 marlas. Undisputedly, land comprising Khasra No.61 & 101 being indivisible, is required to be put in common use by the co-sharers.
3. Khasra No.72 is recorded as Gair Mumkin Abadi, admeasuring 14 marlas. Since the year 1990, ::: Downloaded on - 15/04/2017 18:10:37 :::HCHP ...2...
parties are litigating only with respect to this piece of land.
4. Since the land involved is marginal, this Court .
made an endeavour of having the dispute amicably resolved. Decree passed by the trial Court is only preliminary. Despite best efforts put in, unfortunately, parties could not arrive at any amicable settlement.
5. Appellants have filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 24.9.2003, r passed by the learned District Judge, Hamirpur, Himachal Pradesh, in Civil Appeal No.44 of 1996, titled as Desh Raj and others v. Bidhi Chand and another, whereby judgment and decree dated 30.3.1996, passed by the Senior Sub Judge, Hamirpur, in Civil Suit No.107-1 of 1990, titled as Bidhi Chand v. Krishan Kumar and another, stands affirmed.
6. Plaintiff Bidhi Chand filed a suit for possession, by way of partition, with respect to his share in the suit land. Defendants resisted the suit, pleading relinquishment on the part of the plaintiff, vide agreement deed dated 26.12.1989.
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7. Based on the pleadings of the parties, trial Court framed the following issues:
1. Whether the plaintiff is entitled for the .
relief of possession by way of partition as alleged? OPP
2. Whether there is an agreement dated 26.12.1989 vide which the plaintiff has relinquished his whole share in exchange to the defendant as alleged, if so, its effect? OPD
3. Whether the suit land is not liable to be partitioned and the plaintiff has no locus-standi to file this suit as alleged?
OPD
4. Whether the plaintiff is estopped from filing the present suit by his act and r conduct as alleged? OPD
5. Whether the defendant No.2 is in adverse possession of the suit land as alleged? OPD-2
6. Relief.
8. Document of relinquishment/compromise (Ex. DA), so propounded by defendant No.2, namely Mor Ram, being inadmissible in evidence, for want of registration, was discarded by the trial Court. Finding the plaintiff, defendant No.1 Krishan Kumar and defendant No.2 Mor Ram (his successors-in-interest), to be co-owners, trial Court decreed the suit as under:
"In view of my findings on the aforesaid issues, the suit of the plaintiff is decreed partly to the extent that a preliminary decree is passed for partition of the suit land except ::: Downloaded on - 15/04/2017 18:10:37 :::HCHP ...4...
the well situated in Khasra NO.101 and Khalwara situated in Khasra No.62 by appointing a local commissioner and the share of the plaintiff shall be 10/15 of the remaining land (after excluding 15 Marlas Gair .
Mumkin Khalwara and 10 Marlas Gair Mumkin Abnashi/well) measuring 14 Marlas and the share of Shri Mor, father of defendants No.2(a) to 2(c) shall be 2/15 and Krishan Kumar 3/15 of this land. Keeping in view the facts and circumstances of the case the parties are left to bear their own costs. Decree sheet be drawn accordingly and file after its due completion be consigned to the Record Room."
9. The lower Appellate Court has affirmed the findings of fact, judgment and decree. Hence, the present appeal, which was admitted on the following substantial questions of law:
1. Whether both the Courts below have erroneously held Exhibit DA to be inadmissible in evidence for want of registration by misreading the document and misapplying the provisions of the Registration Act, especially when the admissibility of the document was never questioned by the plaintiff-respondent and when such document was admitted in evidence by the Courts below?
2. Whether both the courts below have ignored the provisions of the Code of Civil Procedure and Partition Act in ordering the preliminary decree for partition in favour of the plaintiff-
respondent, especially when the exclusive possession of defendant- appellant was established proving the complete ouster and perfecting the title of the defendants-appellants over the ::: Downloaded on - 15/04/2017 18:10:37 :::HCHP ...5...
suit property not only on the basis of Exhibit DA, but by adverse possession?
10. Ex. DA, as the appellant wants the Court to .
believe, is not a document, recording the compromise, pertaining to the exchange of land, which took place inter se the parties on an earlier point in time. But it is a document, expressing intention of the parties, in presenti, to exchange the land.
11. What is sought to be done in terms of document (Ex.DA), dated 26.12.1989, is relinquishment of a right by one party, in an immoveable property, in favour of another party. Written instrument, conferring right, title or interest by one party, in favour of another party, requires registration under the provisions of the Indian Registration Act, 1908. (Bhawant Prashad v. Mukat Lal and others, 1986 SLC 195). Thus, no error can be found with the findings returned by the trial Court in not relying upon the same, for the purpose of adjudication of the lis, inter se the parties.
12. From the material on record, more particularly, revenue entries (Ex. P-1, Ex. DB to Ex.DH) and the testimony of the witnesses, share holding of the co-owners is not in dispute. Bidhi Chand is owner to the ::: Downloaded on - 15/04/2017 18:10:37 :::HCHP ...6...
extent of 10/15 share, Mor Ram to the extent of 2/15 share and Krishan Kumar to the extent of 3/15 share.
13. Plaint does reveal that there is no mention of .
any house in existence over Khasra No.72. It has come on record that Mor Ram had built his house (Chappar) over part of land comprising Khasra No.72. But then, it has also come on record that the said Chappar had fallen down and only during the pendency of the suit, as emerged from the testimony of Bidhi Chand (PW-1), new construction was raised by the successors-in-interest of Mor Ram. It has not come in evidence that the Chappar of Mor Ram was either jointly possessed or constructed out of joint funds of the co-sharers. But then, it has also not come on record that after the death of Mor Ram, his legal heirs are residing in the newly constructed portion, though there is evidence of some commercial activity being carried out therein. Any which way the fact of the matter is that the parties are co-owners and plea of ouster is legally unsustainable, particularly in the face of litigation inter se the parties and plaintiff's assertion of his rights over the suit land.
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14. In the instant case, only preliminary decree stands passed by the trial Court. The property is to be partitioned by the Local Commissioner.
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15. There is neither any illegality nor any infirmity in the preliminary decree, so passed by the trial Court, as affirmed by the lower appellate Court. Actual partition is to take place. Whether the construction, so raised, by the successors-in-interest of Mor Ram, is to be protected or not, are all issues which need to be considered and examined by the Local Commissioner, at the time of actual division of the property. Share holding of each co- owner is required to be kept in mind.
16. Plea of acquiescence, so sought to be raised by the present appellant, in the instant case, is totally misconceived and unsustainable in law.
17. In support of his contention that Gair Mumkin Abadi land cannot be partitioned, Mr. Bhupinder Gupta, learned Senior Advocate, has invited attention to the decision rendered in Ganga Devi and another v. Ashok Kumar and others, Latest HLJ 2011(HP) 721; and Kewal Ram v. The Gram Panchayat Bhutti through its Pradhan and others, ILR 1987 (Himachal Series) 211. ::: Downloaded on - 15/04/2017 18:10:37 :::HCHP
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18. Ratio of law laid down therein is left to be applied to the factual matrix, as may emerge on record, at the time of actual division of the property. What is the .
outcome of reconstruction, so carried out by the successors-in-interest of Mor Ram, over the Chappar, which had fallen 20-25 years prior to raising of new construction, shall also be considered by the Local Commissioner. Whether the new construction, in equity, needs to be protected in favour of successors-in-interest of Mor Ram or not is also left open. All factors including share holding of each party would determine such right.
19. As such, it cannot be held that findings returned by the Courts below are illegal, perverse and erroneous, warranting interference by this Court. Substantial questions of law are answered accordingly.
For all the aforesaid reasons, the appeal is dismissed and disposed of, so also the pending application(s), if any.
( Sanjay Karol ),
May 14, 2015(sd) Judge.
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