Kuldip Singh v. Ajit Singh & Ors.

Mr.Arun Abrol, Advocate for the appellant. None for the respondents. Vinod K. Sharma, J. (Oral) Nobody has put in appearance on behalf of respondent No.3 despite service. Proceeded ex parte. This regular second appeal by the defendant-appellant, is directed against the judgment and decree dated 31.07.2004, passed by the learned courts below vide which suit for declaration filed by the plaintiffs claiming to be the owner in joint possession was partly decreed. The plaintiffs-respondents claiming themselves to be the legal heirs of Ujjagar Singh, claimed share in the property by way of inheritance. The details of the property were given in the head note of the suit. The suit was contested by the defendant No.1-appellant, on the plea that land measuring 05 kanals 08 marlas out of land measuring 17 kanals 03 marlas situated in the revenue estate of village Tibbar Tehsil and District Gurdaspur was bequeathed to him by Ujjagar Singh under a Will, and part of the property was also sold to him by way of a registered sale deed. RSA No.1155 of 2008 2 Therefore, the plaintiffs had no title or interest in the land measuring 05 kanals 08 marlas. As regards the share in the residential house, the defence taken by the defendant No.1/appellant was that this property was also purchased by defendant No.1/-appellant from his father late Ujjagar Singh for a sum of Rs.99/- (Rupees Ninety nine only) vide Exhibit D-3. A reading of the Exhibit D-3, shows that the defendant No.1- appellant purchased the house alongwith debris from Ujjagar Singh the value of which was assessed as Rs.1,00,000/- (Rupees One lac only). Learned trial court did not accept this contention of learned counsel for the defendant No.1-appellant, qua the residential house for the reason that Exhibit D-3 though mentioned the price of debris to be Rs.1,00,000/- ( Rupees One lac only) and price of plot as Rs.99/-(Rupees Ninety nine only). It was held by the learned trial court that Exhibit D-3 was not a sale deed, but merely a receipt which did not pass on any title to the defendant No.1-appellant. The learned trial Court therefore, while taking notice of the admission of the defendant No.1-appellant that the debris of the house was with him, came to the conclusion that the plaintiffs-respondents being legal heirs, were also entitled to their share in the debris. The learned trial court therefore, partly decreed the suit, qua the residential house measuring 16 marlas and also directed defendant No.1/appellant to make payment to all the remaining co-shares proportionately. Both the parties i.e. plaintiffs as well as defendant No.1 went in appeal. Both the appeals were dismissed. Mr.Arun Abrol, learned counsel appearing on behalf of the appellant contends that this appeal raises following substantial questions of law:- RSA No.1155 of 2008 3

1. Whether the suit for declaration without consequential relief was maintainable?

2. Whether the judgment and decree passed by the learned court below is outcome of misinterpretation of Exhibit D-3? Leaned counsel for the appellant in support of first question of law contended that mere suit for declaration without consequential relief, was not competent. The learned courts below therefore, committed an error in law in decreeing the suit partly, though it was mere suit for declaration which was prima facie not competent, in view of the settled law. This contention of learned counsel for the appellant deserves to be rejected. A reading of the plaint shows that the suit filed, was not merely for declaration but for joint ownership and joint possession, therefore, it cannot be said to be a suit for mere declaration only, though the learned courts below have wrongly held that the suit was for declaration. The first substantial question of law, therefore, does not arise for consideration in this appeal. On the second substantial question of law, learned counsel for the appellant referred to the finding recorded by the learned courts below, wherein learned courts below have held that vide Exhibit D-3, the defendant No.1-appellant had paid a sum of Rs.1,00,000/- ( Rupees One lac only) to Ujjagar Singh for the purchase of debris. The contention of the learned counsel for the appellant was, that once Exhibit D-3 was not taken into evidence for want of registration and was disbelieved, there was no occasion for the learned courts below to RSA No.1155 of 2008 4 have held the debris to be worth Rs.1,00,000/- (Rupees one lac only), and thereafter to grant share in the said debris to the plaintiffs-respondents. It was also the contention of the learned counsel for the appellant, that the document Exhibit D-3 could be accepted or rejected in toto. The learned courts below, committed an error in law in mis-interpreting the document i.e. Exhibit D-3, to order that the defendant No.1-appellant was liable to pay proportionate price of debris to the plaintiffs-respondents. This plea of the learned counsel for the appellant cannot be accepted. A reading of the judgment of learned courts below would show that the payment of share was ordered by the learned Courts below to the other co-sharers in view of the admission made by the defendant No.1- appellant, as well as the stand of the defendant No.1/appellant himself in Exhibit D-3 that the price of the debris was Rs.1,00,000/- (One lac only). The finding on issue No.3-D recorded by the learned trial Court, reads as under:- “Issue No.3-D By producing, receipt dated 19.11.1999 Ex.D-3 by defendant no.1 wherein, he himself has admitted that the articles and debris of the house are valuing Rs.1 lac. He also admitted that the sale deed/receipt dated 19.11.1999 was executed, the house was existing thereon which was lateron, demolished and debris was lying with him. So, the defendant No.1 is directed to make payment to all the remaining co-sharers i.e. plaintiffs and defendant No.2 therein proportionately. This issue is decided in favour of plaintiff and against defendant.” The finding of the learned trial Court on Issue No.3-D has been affirmed by the learned lower appellate court. This Court sees no reason to interfere in the concurrent findings recorded by the learned Court below. RSA No.1155 of 2008 5 Substantial question of law No.2 is also answered in favour of the respondents and against the appellant. No merit. Dismissed. No costs.

20.04.2010 [ Vinod K. Sharma ] Judge