Braham Dutt v. Om Parkash & Anr.

CM stands disposed of. RSA No.4132 of 2009 This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for declaration that a family partition had taken place between the parties in the year 1975 as per site plan, was decreed with consequential relief restraining the appellant from interfering or alienating any part of the suit property which had fallen to the share of the plaintiff-respondent. As per the averments made in the plaint, the properties shown with letters AGHIFEJZUVWXYKLMNOPQRSTBA in site plan Ex.P-1 were joint of the parties. Out of the aforesaid properties, a portion shown with letters BCOPQRST in the site plan measuring 408 square yards was purchased by the parties jointly on 31.12.1971 vide registered sale deed and remaining properties show in the site plan were ancestral properties RSA No.4132 of 2009 (O&M) 2 inherited from the father of the parties. It was further averred that in the year 1975, a family settlement/partition with respect to the suit properties took place between the parties and the same was mutually divided into three parts. Accordingly, the portion shown in red colour with letters KLMNPQRSTBCD fell into the share of the plaintiff-respondent. Similarly properties shown with blue colour with letters ABCDEFG in the site plan, fell to the share of Jai Narain proforma respondent No.2 and remaining portion shown in yellow colour with letters FGHI & UVWXYKDEJZ fell to the share of the appellant. The portion shown with green colour in the map by letters UZJEFI in the site plan is a metalled road which was an old Rasta. At the time of family partition, the parties to the suit changed the possession and since then they were separately and exclusively residing in the properties which have fallen in their share. Now the defendants were backing out from the aforesaid family settlement which took place in the year 1975 and were trying to take forcible possession of the portion shown in red colour which is depicted with letters BCOPQRST measuring 408 square yards and which has fallen in the share of the plaintiff-respondent and which was purchased vide sale deed dated 31.12.1971 and threatened to sell out 2/3rd share of the aforesaid property. The plaintiff- respondent asked the appellant and respondent No.2 several times to desist from his illegal acts but to no effect. Hence, the present suit. Upon notice, defendant No.1 filed written statement controverting the averments made in the plaint. On merits, it was admitted that properties marked by letters AGHIFEJZUWXYKLMNOCB shown in the site plan attached with the plaint were joint and ancestral properties of the parties, inherited by them from their father and were mutually partitioned between them about 20 years ago and the parties were in exclusive possession in the respective portions of ancestral property in the manner RSA No.4132 of 2009 (O&M) 3 mentioned in the site plan, Annexure D1 whereas rest of the property marked with letters BCOPQRST shown in the site plan of the plaintiff measuring 408 sq. yards was jointly purchased by the parties in equal share vide sale deed dated 31.12.1971 and the said property was still joint between the parties. Since the appellant was co-sharer in the suit property, he had every right to deal with the same. Dismissal of the suit was prayed for. Defendant No.2 also filed written statement admitting the claim of the plaintiff-respondent in toto. It was prayed that parties to the suit be declared as owners in possession of the share as per family settlement as shown in the site plan. On the pleadings of the parties, the following issues were framed : “1. Whether the plaintiff is entitled for a decree as prayed for? OPP

3. Whether the plaintiff has no cause of action? OPD Whether the plaintiff is estopped by his own acts and conduct from filing the present suit? OPD

4. Relief?” After hearing learned counsel for the parties and taking into consideration the evidence brought on record, the trial Court came to the conclusion that a family partition/settlement had taken place between the parties as a result of which they were living separately in the portions fallen in their respective share as depicted in the site plan Ex.P1/D1 and as a result of the aforesaid findings, the suit of the plaintiff-respondent was decreed. Feeling aggrieved from the impugned judgment and decree RSA No.4132 of 2009 (O&M) 4 dated 29.2.2008, the appellant preferred an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 27.4.2009. While upholding the judgment of the trial Court, the Lower Appellate Court came to the conclusion that there had been a family partition of the immovable property including the suit property between the parties in the year 1975 and since then they were in separate possession of the property fallen to their respective share as shown in the site plan Ex.P-1. Still not satisfied, the appellant has approached this Court by way of instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the Courts below have grossly ignored the admissions made by the witnesses of the plaintiff-respondent in their evidence with regard to the property in question to the effect that the disputed property was not partitioned. Learned counsel has referred to the cross-examination of the plaintiff-respondent wherein he has stated that he has 1/3rd share and 2/3rd share of the same except to Braham Dutt and Jai Narain. Learned counsel has further referred to the other evidence i.e. Ex.D1 and according to him, from the aforesaid evidence the correct share of all the three brothers in the disputed property is clearly depicted and thus, the judgment and decrees of the Courts below are based upon perverse findings and are liable to be set aside. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal: “(i) Whether the judgment and decree dated RSA No.4132 of 2009 (O&M) 5

29.2.2008 and 27.4.2009 are illegal, wholly without jurisdiction and liable to be set aside? (ii) Whether the evidence which has been produced by both the parties have been ignored by the ld. Courts below while passing the impugned judgment and decree therefore, the regular second appeal is maintainable? (iii) Whether the regular second appeal maintainable where the courts below misread the evidence oral as well as documentary as well as misconstrued the evidence produced by the present appellant? (iv) Whether in the absence of any written or registered family partition regarding the jointly purchased property, no adverse inference can be drawn by the courts below? (v) Whether the suit of the present plaintiff- respondent No.1 for declaration is maintainable or not? (iv) Whether no cause of action arises against the present appellant in the present suit?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees. Admittedly, the plaintiff and defendants No.1 and 2 are the real brothers being son of Sh. Mittan Lal. Again there is no dispute that a family partition took place by mutual consent between the parties in the year

1975. There is no dispute that by virtue of the aforesaid partition/family settlement, the ancestral property inherited by the parties from their father was partitioned. The only dispute between the parties is with regard to the RSA No.4132 of 2009 (O&M) 6 land measuring 408 sq. yards which was purchased by the plaintiff and defendants No.1 and 2 in equal share in the year 1971. As per the arguments raised according to the appellant, the aforesaid property could not have been joined with the ancestral property for the purpose of family settlement unless an amount, as value of the share of the appellant for this property was paid to him during the family settlement; as there was no occasion or reason for him to relinquish his right in the suit property. It may also be noticed that except the aforesaid admissions and ocular evidence, there is no documentary evidence to prove the terms and conditions of the mutual partition/family settlement between the parties. The appellant himself admits that a family partition had taken place between the parties. However, he alleges that the partition was only qua the ancestral property inherited by him and his brothers from their father and the property in dispute was not partitioned. However, in his site plan Ex.D1, tendered in evidence he had shown possession on separate portions of each of the three brothers including the suit land, thus, from his own document, it is established that at some point of time there was a family settlement by virtue of which they were in separate possession of the property. Once it is established that a family settlement/partition of the immovable property had taken place between the parties, it does not appeal to reason that the property which had been purchased by the parties jointly and just adjoining to the ancestral property was kept aside as joint property and in such circumstances, the only presumption can be that the entire property of the parties was put to partition. Once the factum of family settlement as alleged by the plaintiff-respondent stands established, it was for the appellant to prove that the property in dispute was kept joint as it is his assertion and the burden of proof was upon him to prove the same. Moreover, there is nothing on record to prove the measurement of the RSA No.4132 of 2009 (O&M) 7 portion that had fallen in the share of the appellant and of the portions of the properties that had gone in the share of plaintiff-respondent and the defendant-respondent Jai Narain. No plea of imbalance of properties has been raised in the pleadings by the appellant nor any such plea has been proved. It may also be noticed that there exists construction on the disputed property which is in possession of the plaintiff-respondent. The aforesaid construction has also been shown by the appellant himself in his site plan Ex. D1 and has also been shown in possession of the plaintiff- respondent. At no stage, the appellant has proved or pleaded that he had raised any objection against the aforesaid construction made by the plaintiff-respondent on the suit property meaning thereby it was to his knowledge that the aforesaid property had fallen in the share of the plaintiff-respondent. Thus, in view of the aforesaid discussion, no fault can be found in the findings of the Courts below. No substantial question of law arises in this appeal. Dismissed. July 9, 2010 (RAKESH KUMAR GARG) JUDGE RSA No.4132 of 2009 (O&M) 8