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1994 DIGILAW 27 (DEL)

KANWALA RAM v. SWARAN KAUR

1994-01-12

D.K.JAIN, D.P.WADHWA

body1994
D. K. Jain, J. ( 1 ) THIS appeal is directed against the judgment dated 27 February 1992 of the Additional District Judge, Delhi, dismissing with costs the suit filed by the appellants against the respondent for separate possession by partition and in the alternative for joint possession in respect of the plot No. J-107, New Delhi South Extension, Part-1, New Delhi, included in Khasra No. 143, Kotia Mubarakpur, New Delhi. ( 2 ) THE appellants herein and plaintiffs in the suit, had acquired and obtained possession of the said plot along with some other plots vide Exchange Deed dated 11 April 1961 from one Chandi Ram. In the Exchange Deed the size of the plot was stated as 273-1/2 sq. yds. By Sale Deed dated 01 May 1964, the plot was sold to the respondent. The appellants claimed that even after execution of the sale deed in favour of the respondent, they were joint owners and in joint possession of the said plot with 207/480 and 273/480 share respectively, but the respondent had raised a building on one side of the joint land without their consent and knowledge, which had cast a cloud on their title. They alleged that despite their repeated oral requests and a telegram dated 22 April 1976 to the respondent to partition the said property and to settle the matter, she has failed to do so and, therefore, on 28 April 1976 they had to file the suit for partition and separate possession of their share and in the alternative joint possession. ( 3 ) THE suit was contested by the respondent, inter alia, on the pleas that the appellants had no right, title or interest in any portion of the suit land as they had sold the entire plot with all their rights and titles in the plot to her vide sale deed dated 01 May 1964; after purchase the respondent had got the plan sanctioned for construction of a 2-1/2 storeyed building on the plot in May 1964 and thereafter started the construction; the appellants and the respondent were never joint owners of the said plot and therefore the suit for partition was not maintainable. Some legal pleas of the suit being not properly valued and the plaint disclosed no cause of action, now not relevant, were also raised. Some legal pleas of the suit being not properly valued and the plaint disclosed no cause of action, now not relevant, were also raised. ( 4 ) ON the pleadings of the parties, the following issues/additional issues were framed: 1. Whether the suit is properly valued for purposes of court fee and jurisdiction OPPs 2. Whether the plaintiffs are joint owners with the defendant in the suit land? OPPs 3. If issue No. 2 is proved in favour of the plaintiffs, what is their share in the suit property? 4. Whether the plaintiffs are in joint possession with the defendants of the suit land? OPPs 5. Does the plaint disclose no cause of action? OPD ADDITIONAL ISSUES 1. Whether the suit is not maintainable as alleged? 2. Whether the plaintiffs are entitled to claim partition. If so, what are the shares of the parties. ( 5 ) AFTER taking evidence, the Addidional District Judge dealt with issues Nos. 2,3,4 and additional issue No. 2 together and found all these issues against the appellants. The remaining issues were not pressed before him and were accordingly found against the appellants. He found that notwithstanding the mention of the are a in the exchange deed as 273-1/2 sq. yds. , the entire plot (in fact 480 sq. yds. in area) had been acquired in exchange by the appellants which was sold in entirety by them to the respondent. He thus, held that the appellants had failed to establish that they were joint owners with. the respondent in the suit land or that they had any share in the suit property or they were entitled to joint possession of the suit land with the respondent. The suit was accordingly dismissed with costs. ( 6 ) ON behalf of the appellants, Mr. R. K. Makhija, Senior Advocate, has urged that the Additional District Judge has not construed the terms of the exchange deed dated 11 April 1961 and the sale deed dated 01 May 1964 correctly. In the two documents the property, subject matter of transfer, is plot No. J-107, but stated to be 273 or 273-1/2 sq. yds. in area. While inviting our attention to the latter part of the exchange deed. Ex. Public Witness 3/1. In the two documents the property, subject matter of transfer, is plot No. J-107, but stated to be 273 or 273-1/2 sq. yds. in area. While inviting our attention to the latter part of the exchange deed. Ex. Public Witness 3/1. where it is recorded that "in case more area than that mentioned in Plot No. J-107 is available at the site, this is also included in the exchange deed", the learned counsel sought to conclude that the quoted words did not find place in the sale deed and whereas the entire plot (480 sq. yds.) was acquired in exchange by the appellants, only 273 sq. yds. of the area of the plot had been sold to the respondent and not the plot in entirety. It was urged that the learned trial court had misconstrued the documents and erred in holding that the entire plot had been sold. Emphasis was sought to be laid on the recital of mcsurcments recorded as 60 X 41 in the sale deed to contend that whereas the entire plot had been acquired in exchange by the appellants, they had sold only specific area of it mentioned as 60 x 41 in the sale deed, Ex. PW3/2. ( 7 ) THE real point for determination is whether what was obtained in exchange by the appellants and later sold by them to the respondent is the plot No. J-107 itself or only a part thereof. From a perusal of the exchange deed. Ex. Public Witness 3/1, it appears that what was exchanged was plot No. J-107 in its entirely though the area of the plot is mentioned as 273- 1/2 sq. yds. which now in fact turns out to be 480 sq. yds. The position is clarified by Chandi Ram, Public Witness 4, who originally owned the plot and gave it in exchange to the appellants. Crossexamined, he stated that no physical measurements of the plots given in exchange to the appellants were taken. There is no rebuttal to it. The recital in the latter part of the exchange deed "in case more area than that mentioned in plot No. J-107 is available at the site, this is also included in (he exchange deed" further shows that the mention of the area in the exchage deed was not actual but only hypothetical. What was exchanged was the entire plot, whatever its area. What was exchanged was the entire plot, whatever its area. ( 8 ) THE recitals in the sale deed are to the effect Itiat the vendors-appellants are the absolute, sole. exclusive and rightful owners and in possession of a freehold plot bearing plot No. 107, Block J (J/107) measuring 273 sq. yds. bounded as: "east. . . . Plot No. J/108/j10 West. . . . Road North. . . . House No. J/105 South. . . . Tomb";that the said plot of land measures 60 x 41 and is 273 sq. yds. in area; the vendors have agreed to sell the same with all rights, title therein, which they have conveyed and delivered possession to the respondent. It is true that the quoted words, stated above, in the exchange deed do not find mention in the sale deed as was contended but a perusal of the sale deed, Ex. Public Witness 3/2, particularly the operative part, summarised above, giving boundaries of the entire plot, shows that the plot itself was sold in its entirety. Where the boundaries are specified, there is no ambiguity and what was transferred is the space covercd by it, irrespective of the mention of the area or dimensions which, in any case, in the context, is not safe guide. The mention of the area in the recitals in the sale deed as 273 sq. yds. or bifurcating it into length and breadth would not mean that only a portion of the plot had been sold Had only a portion of the plot been sold. the location, identity of the particular portion sold would have been specified or it would have been mentioned that 273 sq. yds out of the plot measuring 480 sq. yds. had been sold in the operative portion of the sale deed. This is not so. On the contary the boundaries of the plot shown in the sale deed clearly indicate that the entire plot was sold. Again, if only a portion of the plot had been sold. since the entire plot had been acquired by the vendors-appellants in exchange, as is the appellants case, in the sale deed they would have been shown as owners of the remaining portion of the plot. at least on one side of the plot sold. Again, if only a portion of the plot had been sold. since the entire plot had been acquired by the vendors-appellants in exchange, as is the appellants case, in the sale deed they would have been shown as owners of the remaining portion of the plot. at least on one side of the plot sold. These are strong surrounding circumstances which lead to the irresistible conclusion that the entire plot No. J-107 and not a specific area thereof had been sold. We arc of the view that mention of the area in the exchange deed and as a corollary in the sale deed or the dimensions of length and breadth was hypothetical and redundant. ( 9 ) WE arc, therefore, of the considered view and have no hesitation in accepting the finding of the learned trial court that the entire plot, J-107. had been acquired by the appellants and sold by them to the respondent and they are not co-sharers in the plot. The findings of the trial court on issues Nos. 2,3,4 and additional issue No. 2 are upheld. There is no merit in the appeal. The same is accordingly dismissed with costs. Counsel fee Rs. 2,000. 00.