Punjab-Haryana High Court
Pawan Kumar vs Gurmeet Kaur on 10 January, 2012
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
RSA No. 09 of 2012 (O & M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 09 of 2012 (O & M)
DATE OF DECISION: January 10, 2012
Pawan Kumar .........APPELLANT(S)
VERSUS
Gurmeet Kaur ......RESPONDENT(S)
CORAM: HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present: Mr. G.S. Gill, Advocate,
for the appellant(s).
G.S. SANDHAWALIA, J. (ORAL)
1. The present appeal has been filed by the unsuccessful plaintiff wherein the suit for possession of land measuring 0.5 marla by way of partition has been dismissed and the Trial Court has held that the defendant has a preferential right to purchase the share of the plaintiff of the disputed house as per Section 4 of the Partition Act, 1893 (for short "The Partition Act").
2. The suit for possession was preferred by the plaintiff-appellant on the ground that he was owner of 0.5 marla in the house shown in red colour marked as ABCD in the site plan attached bounded on East: House No. 31- L; West Road; South: Kothi No. 37-R; North: Municipal Park, situated in Model Town, Hoshiarpur. It is alleged that Sarla Devi widow of Des Raj was the owner of House No. 37-L, Model Town, Hoshiarpur and the plaintiff had purchased 0.5 marlas out of the said property from Sarla Devi through Sale Deed dated 05.06.1998 for a consideration of ` 1,20,000 and, RSA No. 09 of 2012 (O & M) 2 therefore, he had become owner to that extent out of the suit property. It was pleaded that there was some litigation between one Gurmeet Kaur and others, on one hand and Sarla Devi and others, on the other hand regarding the suit property. Eventually, a compromise was effected between the two and the claim of Gurmeet Kaur was admitted in the suit land except 0.5 marlas sold by Sarla Devi in favour of the plaintiff. In the said litigation, the plaintiff had also filed an application for being impleaded which had been dismissed on 13.03.2004 with the direction that he can file a suit for partition in respect of his share. Accordingly, it was alleged that the present suit has been filed.
3. The defendant appeared and contested the suit by filing written statement wherein various objections were taken and it is alleged that Sale Deed dated 05.06.1998 had no effect on the rights of the defendant since this house was inherited by the defendant. It is Des Raj Gandhi who was the owner of the house and the answering defendant alongwith her children had filed a civil suit for declaration which was decreed on 13.03.2004. The ownership of Sarla Devi was also denied. It is further alleged that the plaintiff was a stranger to the family and could not claim partition and the answering defendant was willing to purchase the alleged share from the plaintiff as provided under the law and the plaintiff was only owner of half marla and the defendant had a preferential right to purchase the same as per Section 22 of the Hindu Succession Act, 1956 (for short "The Succession Act"). In the earlier suit, the defendant had been granted injunction as she was in possession and the plaintiff had tried to take forcible possession of the suit property and demolished the front wall of the house and the matter was reported to the police authorities and a criminal case was lodged against RSA No. 09 of 2012 (O & M) 3 the plaintiff-Pawan Kumar, which was pending before that very Court. The partition suit filed by Sarla Devi and the present plaintiff-Pawan Kumar was earlier dismissed and these facts have not been disclosed.
4. On the basis of the said pleadings, the following issues were framed by the Trial Court:-
1. Whether the plaintiff is entitled for possession of land by way of partition by metes and bound as prayed for? OPP.
2. Whether the suit is barred under order 23 Rule 1(4) of Civil Procedure Code? OPD.
3. Whether the plaint is liable to be rejected in view of the factum of filing of earlier suit titled as "Sarla Devi and Pawan Kumar Versus Gurmeet Kaur and others? OPD.
4. Whether the site plan is not correct as per the spot?
OPD.
5. Whether the suit has not been properly valued for the purpose of Court-fee and jurisdiction? OPD.
6. Relief."
5. After considering the evidence on the record, the trial Court came to the conclusion that there was an admission by the plaintiff that the disputed property is a residential dwelling house and he never came into possession of the disputed property at the spot and Gurmeet Kaur was residing in the said house alongwith her children and Des Raj Gandhi was not related to him. It was noticed that the house in dispute was inherited by the legal heirs of Des Raj and was a dwelling house belonging to an undivided family and the defendant had a preferential right to purchase the share of the plaintiff in the dwelling house as per Section 4 of the Partition RSA No. 09 of 2012 (O & M) 4 Act and the plaintiff being a stranger had no right to force his way into it by suit for partition.
6. While placing reliance on the judgment rendered by the Hon'ble Supreme Court of India in Ghantesher Ghosh v. Madan Mohan Ghosh, 1997 (1) RCR (Civil) 89, the trial Court noticed that the Hon'ble Apex Court has held the object of Section 4 of the Partition Act is to prevent a transferee of member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferrer's family have a right to live. Accordingly, the trial Court came to the conclusion that the plaintiff was not a member of the family of Des Raj and was a stranger to the said family and if the plaintiff was allowed to enter in the dwelling house, it would amount to allowing the stranger to enter in the dwelling house which is against the object of Section 4 of the Partition Act which is to prevent the disintegration of the family dwelling house by preventing to introduce a stranger therein. It was noticed that the defendant had, in the statement on oath as well as in the written statement, pleaded that she is ready to purchase the alleged share in the property as provided under law and, therefore, even though she had not specifically pleaded under Section 4 of the Partition Act, it did not take away her right to purchase the suit property being the member of the undivided family. Accordingly, issue no. 1 was decided against the plaintiff. Issues no. 2 and 3 were decided in favour of the plaintiff and against the defendant regarding the rejection of the plaint and whether the suit was barred under Order 23 Rule 1 (4) of Civil Procedure Code. There being no dispute regarding the site plan, the same was decided against the defendant and in favour of the plaintiff and on the issue of Court fees, it was held that it was properly valued. RSA No. 09 of 2012 (O & M) 5 Accordingly, in the relief clause, the suit of the plaintiff for possession by way of partition was dismissed by holding that the defendant has a preferential right to purchase the share of the plaintiff in the disputed house as per Section 4 of the Partition Act and a preliminary decree in this regard was passed accordingly in favour of the defendant and against the plaintiff. It was further ordered that the value of the share of the plaintiff in the disputed house will be determined as per law in an application for final decree as and when moved by the defendant.
7. The appeal filed by the appellant before the Lower Appellate Court was dismissed and it was noticed that the appellant will be entitled to the value of the share as per law in the application either to be moved by the respondent-defendant or the appellant-plaintiff and the findings of the trial Court were upheld vide judgment and decree dated 24.08.2011. Accordingly, the present regular second appeal has been filed.
8. Counsel for the appellant contends that the appellant is willing to settle the issue subject to value of his share of the property being paid to him and does not want to press for partition and challenge the findings on merits.
9. The rights of plaintiff-appellant have been protected which would be clear from the relief clause of the trial Court judgment wherein, it has been mentioned that the value of the share of the plaintiff in the disputed house will be determined as per law in an application for final decree as and when moved by the defendant. However, this has been modified by the Lower Appellate Court that the value of the share of the appellant will be determined as per law in the application for final decree either to be moved by the respondent-defendant or by the appellant-plaintiff. In view of this RSA No. 09 of 2012 (O & M) 6 modification, which has been mentioned in paragraph no. 14 of the judgment of the Lower Appellate Court though the same may not find mention in the decree sheet, the plaintiff-appellant has no further cause of action. It is accordingly made clear that the plaintiff-appellant is at liberty to file an application for preliminary decree for getting his value of the share in the disputed house assessed in monetary terms, which can then be purchased by the defendant-respondent and the amount be paid to the appellant-plaintiff.
10. Accordingly, the present appeal is disposed of with the above observations, as no substantial question of law arises for consideration.
10.01.2012 (G.S. SANDHAWALIA) shivani JUDGE