2011 Hari Chand & Ors. v. Chaman Kumar Jain & Ors.

Present:- Mr. C.B. Goel, Advocate for the appellants. ****** A.N. JINDAL, J (ORAL) Present appeal is directed against the judgment dated

19.12.2008 passed by the Additional District Judge, Gurgaon, dismissing two different appeals; viz one filed by defendant Nos.6 to 8-appellants (hereinafter referred as 'appellants') and the second filed by the legal heirs of defendant No.9 against the judgment dated 24.12.2005 passed by the Civil Judge (Junior Division), Gurgaon, decreeing the suit filed by the plaintiff- respondent No.1 (hereinafter referred as 'plaintiff) for possession of the suit property by way of partition with consequential relief of permanent injunction. The facts essential for disposal of the present appeal are that the suit property, detailed in para No.1 of the plaint, was owned by Shri Suraj Bhan, father of the plaintiff and defendant Nos. 1 to 5. Said Suraj Bhan died in the year 1989. His wife Kirno Devi also died in May 1991. As such, plaintiff and RSA No. 2845 of 2009 (O&M) 2 defendant Nos. 1 to 5 inherited the said property in equal shares i.e. 1/6th share each. Late Shri Suraj Bhan had constructed two rooms in the suit property, wherein he had been carrying the business of sale of firewood etc. Later on a flour mill was installed therein, which is not existing now. The relations between the plaintiff and defendant Nos.1 to 5 were strained. Pawan Kumar Jain-defendant No.3 had allowed defendant No.9 to set up a brick kiln in a portion of the suit property without the consent of the plaintiff. Defendant Nos. 6 to 8 alleged that they had purchased the share of Pawan Kumar, while defendant No.9 alleged that he had purchased the share of Siri Pal Jain-defendant No.4. There had been a consistent dispute between the parties regarding enjoyment of the joint property. The plaintiff having 1/6th share in the suit property wanted to get his share separated from the defendants. Defendant Nos. 3 and 5 did not contest the suit and were proceeded against ex-parte. Defendant Nos. 2,4 and 9 filed separate written statement, wherein it was denied that the suit property was joint between the parties, however, they took a plea of oral partition by the parties during the life time of their father, which was later on reduced into writing and signed by both the parties. Defendant Nos. 6, 7 and 8 also filed separate written statement, while denying the claim of the plaintiff. From the pleadings of the parties, following issues were framed by the trial Court:-

#2. Whether suit property is joint of the parties? OPP If issue No.1 is proved, then what are the shares of the parties? RSA No. 2845 of 2009 (O&M) 3

#6. Whether suit is not maintainable in the present form? OPD Whether plaintiff has no locus standi to file the present suit? OPD Whether suit property was partitioned vide deed dated 03.10.1979, if so its effect? OPD Whether defendant No.9 purchased portion of property marked by letters ABCD and shown in red colour in the attached site plan vide sale deed dated

03.05.1991 in which he is running his business, if so its effect? OPD

#7. Whether plaintiff has concealed the material facts from the Court, as stated in preliminary objection No.2 of the written statement filed by defendants No.6 to 8, if so its effect? OPD

#9. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD Whether defendants No.6 to 8 are bona fide purchasers of suit property for a valuable consideration and are entitled to protection U/S 41 of Transfer of Property Act? OPD

#10. Whether suit is not within time? OPD

#11. Whether defendants No.6 to 8 have become owners of the suit property by way of adverse possession? OPD

#12. Relief.” The trial Court decreed the suit of the plaintiff to the extent that plaintiff and defendant Nos. 1, 2 and 5 have 1/7th share each, defendant Nos. 6 to 8 are jointly having 1/7th share and defendant No.9 has 2/7th share in the suit property. The appeals filed by the defendants were dismissed by the first Appellate Court vide judgment dated 19.12.2008. Aggrieved against the said judgment, the defendant Nos. 6 to 8-appellants have filed this second appeal. Learned counsel for the appellants has tried to place RSA No. 2845 of 2009 (O&M) 4 reliance on the alleged family settlement, Ex.DW1/A, whereby Pawan Kumar was given plot measuring 250 sq. yards adjoining the road, in order to contend that since the family settlement had taken place way back on 28.09.1975, therefore, the plaintiff was not entitled to any decree for possession by way of partition. Having perused the family settlement, Ex.DW1/A, it appears to be no settlement in any terms. It does not bear the signatures of Pawan Kumar and other executants thereof namely Moti Ram Jain etc. The family settlement does not recognize any pre-existing right or a previous oral/written settlement between the parties, but it confers upon the parties in present. It records that Pawan Kumar has a gold 'pendal' of his mother and Rs.157/-, which were kept as 'amanat' and he will return the same on the next day of the 'Holi' of that year. That apart, the alleged family settlement appears to have never been acted upon. There is no evidence that the conditions, as mentioned in the settlement, had ever been complied with by Pawan Kumar and it was ever acted upon in the record. The other brothers of Pawan Kumar are not party to the family settlement and as such, the alleged settlement being unregistered, is of no consequence. All the issues appear to have been decided by both the Courts below properly after appraisal of the entire evidence on record and no substantial question of law arises for determination by this Court in this appeal. Resultantly, finding no merit in the appeal, the same is hereby dismissed. October 20, 2011 (A.N.JINDAL) JUDGE