Chandu Lal & Anr. v. Bhagwan Dass & Ors.

Mr. Hari Pal Verma, Advocate for the appellant. Mr. P.R. Yadav, Advocate for the caveator-respondents. Rakesh Kumar Garg, J.(Oral) Mathuri Bai, predecessor-in-interest of the appellants, filed a suit for partition of disputed properties and for declaration to the effect that sale deed dated 27.9.2001 in favour of Suresh Kumar etc., was wrong illegal, and not binding on her rights. It was her case that Rati Ram, father of the parties, was owner of the suit property as detailed in para No.1 of the plaint and the site plan attached therewith. After his death and their mother Barfi Devi, the plaintiff and defendant No.1 to 5 were owners in possession of the suit property in equal shares. Defendants No.1 and 2 alleged some decree in their favour which is not binding on her rights as she was not party to the aforesaid decree nor it was registered. Since she was unable to enjoy the joint property so it was necessary to seek partition. It was further pleaded by the plaintiffs that Amar Chand defendant No.1 executed a sale deed dated 27.9.2001 in favour of Suresh Kumar etc illegally and the same was not binding on her rights as he had no right to execute the sale deed because he was neither owner nor in possession of the suit property. The defendants were requested to get the property partitioned but RSA No.1528 of 2010 (O&M) 2 in vain. Hence the suit. Upon notice, the suit was contested by the defendants. The defendants raised various preliminary objections. The case of defendant No.1 is that the plaintiff filed a wrong site plan. The details of the properties were also wrong. Property of Jagan Nath-defendant No.3 was shown wrongly. This property of Jagan Nath was earlier owned by Rati Ram. Out of four properties, two properties were purchased from auction by Rati Ram and two were purchased vide sale deeds dated 11.9.1956 by him. Thus, Rati Ram was the owner of the aforesaid four properties. It was denied that parties were owners in possession of equal shares. Civil Suit No.11 of

20.2.1967 titled as Amar Chand v. Rati Ram etc. and Civil Suit No.65 dated

30.3.1968 titled Fakir Chand v. Rati Ram etc. were decreed in favour of defendants No.1 and 2 on 28.2.1967 and 30.5.1968 respectively and were in the knowledge of all the parties. These decrees had become final. Rati Ram had a joint Hindu family and the property owned and possessed by him was coparcenary. Four shops, Ahata and houses were ancestral property of joint Hindu family and properties are detailed in para 2 of the written statement. These shops were purchased by Rati Ram and other shop showing in green colour was purchased in the name of Jagan Nath and were put in common pool. They were treated as coparcenary properties. At the time of purchase of the shop Jagan Nath was minor and had no independent source of income. It was further pleaded that about 35 years ago, parties had an oral family settlement wherein properties of the joint Hindu family were partitioned and therefore, this suit was not maintainable. It was further averred that Mathuri Bai had never claimed as co-sharer in the property of Rati Ram nor she was having any share. Defendant No.2 filed separate written statement with counter claim wherein he averred that property Mark A and B are of defendant RSA No.1528 of 2010 (O&M) 3 No.2 alone on the basis of judgment and decree dated 30.5.1968 passed in Civil suit No.65 dated 30.3.1968 titled as FaKir Chand v. Rati Ram. The decrees in question were treated to be correct by the parties till date. A counter claim was lodged by defendant No.2 pleading that the plaintiff and other defendants shall not interfere in the property of defendant No.2 and his share Mark A, B and C be separated. Defendant No.3 filed separate written statement pleading that three shops were purchased by his father in his name. Defendants No.1 and 2 separated from their father about 30 years ago by filing a suit for partition and were in separate possession since then. The third shop fell to the share of defendant No.3. One shop was purchased by Jagan Nath with his own funds and plaintiff and defendants No.4 and 5 are real sisters of defendant Jagan Nath and nothing was given to them at the time of partition, thus, they had also share in the disputed property. Defendants No.1 and 2 had no share in the property as they already stood separated during life time of Rati Ram, their father. Defendants No.4 and 5 filed separate written statement pleading that one shop was purchased by Jagan Nath of which he was owner in possession. The other properties were purchased in the name of Rati Ram wherein all the brothers and sisters had shares and joint possession. Defendants No.6 and 7 filed separate joint written statement admitting the ownership of Rati Ram and his death. It was further averred that disputed property was not joint with the plaintiff nor she was in possession of any portion of it. Amar Chand sold a shop, of which he was owner in possession, to defendants No.6 and 7 vide sale deed dated

27.9.2001. Before that they were in possession of the shop as tenant and were bona fide purchasers with consideration without notice. Luxman was RSA No.1528 of 2010 (O&M) 4 not adopted son of Mathuri Bai. In Civil Suit No.222 titled Amar Chand v. Fakir Chand, Mathuri Bai had admitted Amar Chand to be owner of the shop. Mathuri Bai never objected to the tenancy of defendants No.6 and

7. All other allegations were denied. After hearing learned counsel for the parties, the trial Court partly decreed the suit of the plaintiff on the basis of findings given on issues No.1 to 3 holding that the plaintiff was co-sharer in respect of 4th shop/property retained by Rati Ram during his life time to the extent of 1/6th share and she was entitled to partition of the same to that extent. A preliminary decree was passed in her favour and against the defendants as indicated above. The suit of the plaintiffs qua remaining relief was dismissed. Not satisfied, the LRs of Mathuri Bai-plaintiff filed an appeal before the Lower Appellate Court. Defendant No.3 Jagan Nath also filed cross-objections. It was pleaded on behalf of the appellants before the Lower Appellate Court that the trial Court had failed to give any finding with respect to other three properties. The Lower Appellate Court while dismissing the appeal observed that in the written statement Ex.DX, the appellant Mathuri Bai had admitted the fact that 30 years back there was a family settlement between the parties vide which partition had taken place and dismissed the appeal and cross-objections. The only contention raised before this Court by the learned counsel for the appellant is that the findings of the Courts below are based upon Ex.DX, a written statement purported to have been filed by the appellant in the earlier suit. According to the learned counsel for the appellant, the aforesaid written statement Ex.DX has not been proved in accordance with law and therefore, the same cannot be relied upon. RSA No.1528 of 2010 (O&M) 5 I have heard learned counsel for the appellant. The argument raised by the learned counsel for the appellant is noticed only to be rejected. Ex.DX is a certified copy of written statement in earlier judicial proceedings. Under Section 74 of the Indian Evidence Act, 1872, proceedings of judicial record are per se admissible. In this view of the matter, I find no merit in this appeal. No substantial question of law arises in this appeal. No other point was argued. Dismissed. July 15, 2010 (RAKESH KUMAR GARG) JUDGE