Hari Chand v. Vir Bhan & Ors.

Present:- Mr.P.N.Makani, Advocate for the appellant. Mr.D.S.Bali, Senior Advocate with Ms.Neha Mann, Advocate for the respondentss MAHESH GROVER, J This appeal by the defendant is directed against the judgment of the learned Trial Court dated 31.10.1981 and that of the learned Appellate Court dated 8.8.1984. The plaintiffs-respondents filed a suit pleading that they had purchased two properties bearing nos. A61 an A62 from Rehabilitation Department for a consideration of Rs.9500/- in the year 1958 and a sale certificate was issued in their favour. A certificate was issued in the name of the plaintiffs-respondents and their associates out of whom one Palia Ram had verified the claim to the extent of Rs.3446/- while the present appellant had a verified claim to the extent of Rs.2917/-. The plaintiffs- respondents had paid Rs.3446/- to Palia Ram in respect of his claim. The appellant was in possession of the property bearing no.

A62. He filed suit for permanent injunction against the present respondents which was dismissed. Appeal before the Appellate Court was accepted which RSA No. 2247 of 1984 2 resulted in filing of the regular second appeal bearing no.849 of 1964 by the present respondents which appeal was accepted on 15.1.1976, which is on record as Ex.P-3. The rights of the parties were effectively determined on the basis of this judgment and the appellant was held entitled to recover Rs.2917/- as consideration of the adjustment of his claim and it was further observed that the appellant was in possession of the shop without any authority, right or title. The appellant had contested the suit and pleaded that the respondents had filed the suit after lapse of 18 years and that because of the fact that he was an associate at the time of purchase of the property by the respondents from Rehabilitation Department, he was entitled to the ownership and possession of the property to the extent of 2917/9500.

He pleaded that partition had taken place between the parties and he was given his share of the shop and the suit which was filed by him earlier did not pertain to this property A-62. The following issues were framed and the parties went to trial there upon and consequently led respective evidence regarding the aforesaid aspects of the matter:- i) whether the plaintiffs are the owners of the suit property? OPP. ii) Whether the plaintiffs have no locus standi to file the present suit?OPD. iii)Whether the suit is time barred?OPD. iv)Whether the suit is properly valued for the purpose of court fee and jurisdiction?OPP. v) What is the effect of the judgment dated 15.1.1976 of the RSA No. 2247 of 1984 3 Hon'ble High Court?OPP. vi)Whether the defendants are entitled to special costs?OPD. vii)Relief. The Trial Court and the First Appellate Court both negatived the pleadings of the appellant and decreed the suit of the plaintiffs- respondents which has resulted in the filing of the instant regular second appeal wherein counsel for the appellant contended with some vehemence that once it was established that the appellant had a share to the extent of 2917/9500 and that he was an associate of the respondents at the time of purchase, he stepped into the shoes of owner to the extent of 1/3rd and thus was entitled to retain possession of the shop . He contended that suit having filed belatedly could not have been determined in favour of the respondents.

Learned counsel for the respondents on the other hand justified the findings recorded by the Courts below and pleaded that in the absence of any substantial question of law, instant regular second appeal cannot be answered in favour of the appellant. I have heard learned counsel for the parties and have gone through the impugned judgments. Concededly, the respondents had filed a suit earlier in the year 1962 which culminated in regular second appeal wherein this Court while determining the controversy regarding the rights of the appellant in the property in question while accepting the appeal of the respondents observed as follows:- “Be that as it may, it is obvious that neither from the Sale Certificate (copy Exhibit PW.1/1) nor from any other RSA No. 2247 of 1984 4 material the plaintiffs, Hari Chand has established his locus standi to file the suit, which was, therefore, rightly dismissed by the trial Court.

The mere interpretation of the word associate by taking its dictionary meaning as done by the lower appellate Court cannot per se confer any title on a party. Moreover, this Sale Certificate has been wrongly construed to be a sale deed by the lower appellate court. It was not disputed between the parties, as is apparent from the evidence, that a regular sale deed in respect of the property is yet to be executed. In the result, the appeal succeeds. The judgment and decree of the lower appellate Court are set aside while those of the trial Court are restored, the result being that the suit of the plaintiffs-respondents stands dismissed. AS the contesting respondents have not chosen to appear, the appellant shall be entitled to costs throughout.” The appellant is held not to be a co-owner of the property even though his status as an associate is determined and that being so he was held entitled to only his share in the terms of money.

In view of the aforesaid conclusive findings and in the absence of any material shown by the appellant that a partition had been effected regarding the shares in which appellant had a right to the property in question, I am of the considered opinion that there is no substance in the appeal which warrants dismissal. According to the learned counsel for the appellant, following questions of law arise for the consideration of this Court:- RSA No. 2247 of 1984 5 i) whether the sale certificate issued in the name of one person and mere mentioning of the name of the associate at the bottom of the sale certificate would entitle the latter to claim share in the property? ii) Whether the judgment passed by the Hon'ble High Court in the previous suit regarding the same previous suit regarding the same property would operate as res-judicata in the present suit? In view of the fact that this Court in RSA no.849 of 1964 had clearly determined the status of the appellant as an associate and not as an owner, the question of law at sr. no.1 is negatived.

Similarly, the question of law which has been formulated at item no. (ii) is also negatived as not having arisen for the simple reason that it is a settled principle of law that the findings of Court of competent jurisdiction pertaining to the same controversy and same property having already been determined in the earlier proceedings, the instant defence which was set up by the appellant has been rightly negatived by Courts below. No ground to interfere. Hence, dismissed. September 01, 2010 (Mahesh Grover) Judge