Ramadhar Singh v. Sheo Prasad Singh — 1998 DIGILAW 817 (PAT)

JUDGMENT : M.Y. Eqbal, J. This, civil revision application, at the instance of the plaintiff decree holder petitioner is directed against the ORDER :dated 4.3.97 passed by Subordinate Judge-IV, Danapur in execution case no. 2/96 whereby and whereunder the prayer of the petitioners decree-holders for execution of the decree has been rejected except for the payment of cost awarded under the decree. 2. Before appreciating the case of the parties, it is necessary to discuss the brief facts of the case. The plaintiff petitioners instituted title suit no. 858/89 in the court of Subordinate Judge, Danapur seeking a relief that it be declared that there had been an amicable partition of the properties in suit between the plaintiffs and the defendants as per memorandum of partition dated 25.9.89 in which schedule II properties of the plaint were allotted to the defendants and the said partition is final and binding upon the parties. Alternatively, it is prayed that in case the plaintiffs are not found entitled to the aforesaid relief then a decree for partition of Schedule II and III properties be passed and a separate Takhta with regard to 1/2 share of the plaintiffs be carved out and they be put in exclusive possession of the same through the process of the court. 3. The plaintiffs' case inter alia is that one late Nand Lal Singh was their common ancestor. According to the plaintiffs there had been an oral partition amongst the family members in the year 1976 which was reduced into writing by way of memorandum of partition in the year 1984. However, for the sake of convenience the plaintiff no. 1 and defendant no. 1 with their family continued together in business and made joint acquisition in the name of different family members. Further case of the plaintiff is that in the year 1989 there had been an amicable oral partition between the plaintiffs and the defendants and subsequently the lists of partition in the form of memorandum was prepared on 25.8.89 which was signed by all the parties concerned and thereafter both the parties came and continued in their respective Takhta separately and exclusively. In the said partition the plaintiffs were allotted schedule II properties of the plaint and the defendants were allotted schedule III properties of the plaint. In the said partition the plaintiffs were allotted schedule II properties of the plaint and the defendants were allotted schedule III properties of the plaint. Since the defendants were flouting the terms of the said amicable partition, therefore, necessity of filing the suit arose. The defendants in their written statement have admitted the fact regarding partition in the year 1976 but has alleged that after 1976 the plaintiffs came in exclusive possession of schedule II properties. Likewise the defendants came in exclusive possession of schedule III properties. The defendants further alleged that the vehicles (trucks) bearing registration no. BEA 7326, BPZ 8562 and BPA 8562 were acquired in the name of defendant no. 4 Anil Kumar Singh and BPI 6462 was acquired in the name of the defendant no. 3 Ajit Kumar Singh. Likewise truck no. BPL 8562 was acquired after the said partition of the year 1976 by the plaintiff no. 2 Sanjay Kumar Singh. The defendants have denied the story of joint-ness and joint acquisition between the plaintiffs and the defendants. It is, further alleged that the memorandum of partition dated 25.8.89 is fabricated one. The learned sub-Judge after hearing the parties decreed the suit in terms of JUDGMENT : and decree dated 25.11.95. It appears that while the suit was pending a petition for appointment of receiver in respect of the above mentioned vehicles was filed by the plaintiffs petitioners which was rejected by the learned Subordinate Judge in terms of ORDER :dated 29.3.90. Against the said ORDER :the petitioners moved this Court by filing Misc. Appeal No. 48/90. The said Misc. Appeal was allowed and the matter was remitted back to the trial court for disposal of the receivership matter in accordance with law and in the light of the direction given in the said ORDER :. Consequently the receiver matter was again heard by the learned Subordinate Judge who disposed of the application in terms of ORDER :dated 18.3.91. By the said ORDER :petitioners were appointed receiver in respect of two trucks while opposite party no. 3 and 4 were appointed receiver for rest of the trucks. The defendant opposite party then moved this court against the aforesaid ORDER :by filing Misc. Appeal No. 289 of 1990 which was disposed of in terms of ORDER :dated 1.12.91 (annexure 4). From the aforesaid ORDER :it appears that the plaintiff no. 3 and 4 were appointed receiver for rest of the trucks. The defendant opposite party then moved this court against the aforesaid ORDER :by filing Misc. Appeal No. 289 of 1990 which was disposed of in terms of ORDER :dated 1.12.91 (annexure 4). From the aforesaid ORDER :it appears that the plaintiff no. 1 was allowed to be the receiver of Truck No. BEA 7326 with the condition that he shall deposit Rs. 5,000/- every month in court. It was further held that the successful party will naturally take back the amount. 3. Further fact which is necessary to be stated here is that against the final JUDGMENT : and decree the defendant opposite parties preferred first appeal in this court being First Appeal No. 119 of 1996 which is still pending. In the said appeal an application under ORDER :41, Rule 5 of the Code of Civil Procedure was filed by the defendant opposite parties and this court with the consent of the parties in terms of ORDER :dated 13.12.96 stayed execution proceeding with regard to the house and ORDER :ed that execution with regard to any other properties may proceed. 4. It appears that the petitioners decree holders thereafter filed a petition for execution of the decree and prayed that since the petitioners have fully complied with the JUDGMENT : and decree and deposited the loan amount against truck no. BEA 7326 and also deposited Rs. 5,000/- per month in the court, an ORDER :may be passed in favour of the decree holder for withdrawal of the said amount so deposited in the court. Further prayer was made for a direction to the District Transport Officer, Patna for transferring the ownership of the vehicle in favour of the decree holder. The JUDGMENT : debtor opposite party filed objection stating inter alia that the execution case is not maintainable inasmuch as the decree sought to be executed is declaratory in nature. It is further stated that the suit was partly decreed and it was held that defendant Anil Kumar Singh is the rightful owner of the truck and accordingly he is entitled to receive the amount deposited by the petitioner as receiver during the pendency of the suit. It is further stated that the suit was partly decreed and it was held that defendant Anil Kumar Singh is the rightful owner of the truck and accordingly he is entitled to receive the amount deposited by the petitioner as receiver during the pendency of the suit. The learned court below after hearing both the parties and after considering the JUDGMENT : and the ORDER :s time to time passed by the court below and also by this court held that the decree does not speak about the transfer of ownership of the vehicle and it is not proper to release the amount in favour of the decree holder. The court below accordingly rejected the petition. 5. I have heard Mr. S.S. Dwivedi, learned counsel appearing for the petitioners and Mr. B. Choudhary learned counsel appearing for the opposite parties. 6. Admittedly petitioners filed title suit no. 858/89 for a declaration that the partition held between the parties and the memorandum of partition dated 25.8.89 was final and binding on the parties. The suit was decreed in part on contest. I shall first of all refer relevant portion of the findings arrived at by the court below in the JUDGMENT :. Paragraph 7 of the JUDGMENT : reads as under :- "During the course of argument, learned counsel of both sides admitted that the truck no. 7362 is the main item of controversy between the two sides. Therefore, I would like to scrutinise the evidence on the point whether or not the memorandum of partition is valid and genuine document." After discussing the evidence the court below came to the finding which reads as follows:- "In view of the evidence brought on the record on behalf of both parties, I find that the case of the plaintiff is nearer to the truth than that of the defendant. The defendants have not been able to create doubt regarding the genuiness of Ext. 10. Moreover, payment by the members of the plaintiff's family towards the loan of the truck is another circumstance to suggest that the truck business was joint. Sale deeds showing acquisitions in the names of different members of the plaintiffs and the defendants are another circumstance to show that they had carried joint business and made joint acquisitions. 10. Moreover, payment by the members of the plaintiff's family towards the loan of the truck is another circumstance to suggest that the truck business was joint. Sale deeds showing acquisitions in the names of different members of the plaintiffs and the defendants are another circumstance to show that they had carried joint business and made joint acquisitions. In the facts and circumstances, it is held that the deed of memorandum is valid and genuine documents, that the plaintiffs and the defendants remained joint after 1976 in business and acquisition of the properties. These issues are decided accordingly." The conclusion arrived at by the court below in the JUDGMENT : has been recorded in paragraph 14 of the JUDGMENT : while deciding issue no. 10 i.e. “are the plaintiffs entitled to a decree claimed by them”. Paragraph 14 of the JUDGMENT : reads as under :- Issue no. X "The plaintiffs have sought relief that it may be declared that there has been amicable partition of the properties between the plaintiffs and the defendants as per memorandum dated 25.8.89. It has been further sought that the properties detailed in the schedule of the plaint be declared to be the properties of the parties allotted in the partition. Alternatively, the plaintiffs have sought relief to partition the properties if they are not found partitioned. It has already been held that the partition was held in the year 1989 and a deed of memorandum was prepared and further that both the parties put their signatures. Statement of D.W 20 was not believed that Ext. 10 did not contain signature of defendants. On two grounds firstly because in the W.S., there is no pleading denying the signature of the defendant over ext. 10 and secondly D.W. 20 himself states that he has not seen ext. 10. Therefore, he cannot say as to what is the contents of this document. This is an unfortunate statement of D.W. 20. It has weakened his case more than by any evidence adduced on behalf of the plaintiffs in support of genuiness of ext. 10. However, this court cannot make out a third case which is different from what has been agreed in ext. 10. Ext. 10 contains certain obligations on the part of the plaintiffs before claiming the properties. It has weakened his case more than by any evidence adduced on behalf of the plaintiffs in support of genuiness of ext. 10. However, this court cannot make out a third case which is different from what has been agreed in ext. 10. Ext. 10 contains certain obligations on the part of the plaintiffs before claiming the properties. So if those obligations are not discharged, this court cannot hold that the plaintiffs are entitled to claim the properties. However, no time has been fixed for discharging the obligation either for the plaintiffs or for the defendants. I would like to tell one thing more regarding truck No. BEA 7362. Ext. 10 states that this truck was given to the plaintiff Sanjay Singh but on discharging certain obligation which was payment of earlier loan due on this truck, Perhaps this obligation has not been discharged by Sanjay Singh. If this has not been done, Sanjay Singh cannot claim transfer of ownership of the truck. So, the ownership still remains with the person in whose name registration of certificate stands. It has been held that ext. 10 is a valid and genuine document. Similarly the terms of ext. 10 suggests that the defendants would be liable to vacate the house only when they constructed their own house on the land allotted to them. It has been contended that no house has been constructed. There is another hurdle before ext. 10 is acted upon. It is clear that his has not been acted upon fully as yet. However, it has been held that it is a valid and genuine document and the plaintiffs are entitled to get the deed acted upon. This issue is decided accordingly." 7. It is, therefore, manifest from the JUDGMENT : that the court below declared the memorandum of partition (Ext. 10) as valid and genuine document. However, it appears that the trial court assumed that the obligation regarding discharge of liability of the Bank in respect of vehicle no. BEA 7362 has not been discharged by the decree holder Sanjay Singh. On such assumption the trial court held that if the obligation has not been discharged then the decree holder cannot claim transfer of ownership of the truck. BEA 7362 has not been discharged by the decree holder Sanjay Singh. On such assumption the trial court held that if the obligation has not been discharged then the decree holder cannot claim transfer of ownership of the truck. As noticed above, the court below in the impugned ORDER :has taken notice of the fact that the liability of the Bank in respect of the aforesaid vehicle was cleared by the decree holder Sanjay Singh, Further the court below held that if the application for withdrawal of the amount is allowed in favour of the petitioner decree holder it will amount acting against the JUDGMENT : and decree passed by the trial court. In my opinion, the court below has not correctly appreciated the JUDGMENT : and decree passed by the trial court. Admittedly, in the memorandum of partition (Ext. 10) the vehicle in question was given to the plaintiff decree holder and he was appointed receiver in respect of the said vehicle, In the ORDER :dated 2.12.91 passed by this Court in M.A. 287/91 it is very clearly recorded that the successful party will take back the amount so deposited by the plaintiff decree holder in court at the rate of Rs. 5,000/- per month. When the trial court decreed the suit holding that Exhibit-10 is a valid and genuine document then there can be no doubt in holding that the plaintiff decree holder is a successful party. So far vehicle in question is concerned, admittedly the amount of Rs. 5,000/- per month was deposited by the petitioner decree holder in the court. There is, therefore, no difficulty in allowing the prayer of the plaintiff decree holder to take back the amount so deposited in court. However, when the entire JUDGMENT : and decree is subject matter of FA 119/96 it is desirable that the plaintiff decree holder petitioner should be allowed to take back the amount so deposited, subject to furnishing sufficient and adequate security to the satisfaction of the court below. 8. For the reasons aforesaid, this application is allowed and the impugned ORDER :passed by the court below is set aside. It is held that the petitioner decree holder is entitled to take back the amount so deposited in court, subject to furnishing sufficient security to the satisfaction of the trial court.