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2001 DIGILAW 232 (HP)

KRISHAN LAL v. KUMARI ANU

2001-09-11

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J (Oral):-This second appeal under Section 100 of the Code of Civil Procedure arises out of the judgment and decree of learned District Judge, Shimla dated October 1, 1997. Facts necessary for the disposal of the appeal are: 2. Raja Ram, father of the minor plaintiffs and husband of plaintiff Leela Devi and defendant Krishan Lal were sons of Balak Ram. All three of them were joint owners in possession of the property subject matter of dispute. This property was redeemed by Raja Ram and Krishan Lai vide Mutation No.946 attested on June, 1974. As Balak Ram did not contribute for the redemption of the mortgage, therefore, the two brothers, Krishan Lal and Raja Ram possessed the property as Subrogees. On the death of Raja Ram, plaintiffs stepped in his shoes and were joint owners in possession with the defendant. 3. Plaintiffs filed a suit against the defendant seeking to restrain the defendant from interfering in their right of joint usufruct of the suit property as joint owners in possession. According to the plaintiffs the defendant tried to oust the plaintiffs from joint possession of the suit property and tried to appropriate the apple crop on the suit property to himself alone. 4. In answer to the claim of the plaintiffs, defendant, this partition took place in the year 1987 and 10.2 bighas of land, other than the land in dispute, was allotted to the plaintiffs. The partition, it was claimed, was accepted by Leela Devi plaintiff on her behalf and also on behalf of the minors being their natural guardian. Writing to this effect was made which was signed by Leela Devi. 5. The plea of partition was rejected by the learned Trial Court. Plaintiffs were held to be joint owners in possession of the property with the defendant. The suit was decree and the defendant was restrained from interfering in the rights of the plaintiffs to enjoy the usufruct of the suit property as joint owners. Dis-satisfied, the defendant carried an appeal before the learned District Judge on the grounds that the suit for mere injunction without seeking declaration of the title by the plaintiffs was not maintainable. It was also pleaded that the partition was evidenced by document Exhibit DW1/A which was not correctly appreciated by the learned trial Court. 6. Dis-satisfied, the defendant carried an appeal before the learned District Judge on the grounds that the suit for mere injunction without seeking declaration of the title by the plaintiffs was not maintainable. It was also pleaded that the partition was evidenced by document Exhibit DW1/A which was not correctly appreciated by the learned trial Court. 6. Learned District Judge noticed that the plaintiffs sought the relief of injunction against the defendant on the basis of title. He further noticed that defendant did not deny the title of the plaintiffs. What was pleaded by the defendant was that there was a partition of the suit property and in view of that partition, the plaintiffs have no right, title or interest in the suit property. 7. Learned District Judge, after appreciating the evidence concluded that the defendant was not able to prove the factum of partition. It was pleaded before the learned District Judge that by a deed Exhibit DW1/A, plaintiffs were allotted 10.2 bighas of land in lieu of the suit property and the plaintiffs specifically gave up their title and interest. So far deed Exhibit DW1/A was concerned, learned District Judge noticed that it was neither stamped nor registered and therefore it could not be read in evidence. It was contended on behalf of the defendant that deed Ext. DW1 A in fact was not a deed of partition but a Memorandum of partition or a family settlement and, therefore, did not require any registration. The argument was repelled. Construing the writing Ext. DWl/A, learned District Judge found that the document itself purports to effect partition between the parties. Even Roshan Lal, one of the witnesses of the defendant categorically admitted that partition was affected by the writing in question. 8. Learned District Judge also found, and rightly so, that assuming such a partition took place, then the minor plaintiffs were not bound by such partition. The same is voidable at their instance inasmuch as the relinquishment of the share of the minors in the suit property would amount to transfer of the property which is not permissible in view of the provisions of Section 8 (2) of the Hindu Minority and Guardianship Act. Any transfer of the property of the minor)s) by a natural guardian, without the permission of the court, indeed is voidable under sub-section (3) of Section 8 of the Act. Any transfer of the property of the minor)s) by a natural guardian, without the permission of the court, indeed is voidable under sub-section (3) of Section 8 of the Act. District Judge also noticed that plaintiffs were not allotted any separate share in the so called partition, but were allotted some land and compact block of 10.2 bighas, without identifying the share or the area of each of the so-shares. 9. This appeal was admitted on August 19, 1999 on the following substantial questions of law as given in the Memorandum of appeal: 1. Whether in the present facts and circumstances, mere suit for injunction was competent? 2. Whether the document Ex. DWI/A required registration being a partition deed itself or the same was only a list of partition? 3. Whether the partition was invalid? 4. Whether the court could give a finding about the validity or otherwise of the partition or say that the same is avoidable, in the absence of any plea to avoid the same? 5. Whether the partition made/effected by the Panches and the karta of. the family was not binding on the respondents and especially in view of the admission of the respondent No.2 6. Whether the suit for injunction in the present case was bonafide and the respondent No.3 had come to the Court with clean hands? 7. Whether the judgment and decrees of the Court below are sustainable in Law? 8. Whether the court below gave findings which are beyond the scope. Of the pleadings of the parties or adopted and applied wrong tests in arriving on the findings or the findings are based on conjectures and wrong assumptions and the findings are vitiated by grave errors of law and misconstruction of documents and evidence? 10. I have heard the learned counsel for the parties and gone through the record with their assistance. 11. The only question raised in this appeal is about the factum of partition / between the parties which was negatived by both the trial Court as well as First Appellate Court. 12. 10. I have heard the learned counsel for the parties and gone through the record with their assistance. 11. The only question raised in this appeal is about the factum of partition / between the parties which was negatived by both the trial Court as well as First Appellate Court. 12. Learned counsel for the respondents urges that the question whether a partition had taken place or not is a question of fact and this Court in second appeal should not interfere with the finding of fact unless it is shown that the findings are so perverse on the face of it that no reasonable person could have come to such a conclusion. 13. This apart, I find that document of so called partition was allegedly executed on June 8, 1987. It was not given effect in the revenue record nor such partition was reported to Patwari or any other Revenue Officer. Had such partition taken place, as the defendant would have us believe, then it would have been immediately reported to the concerned Revenue Officer for giving it effect in the revenue record. 14. As pointed out in Ishwar Dass Jain (Dead) through LRS. v. Sohan Lal (Dead) by LRS 2000 (I) Supreme Court Cases 434, there are only two situations in which interference with the findings of fact is permissible. The first is when material or relevant evidence is not considered which, if considered, would lead to an opposite conclusion and the second is where a conclusion has been arrived at by the Appellate Court by placing reliance on inadmissible evidence which if ignored would lead to opposite conclusion. Present is not such a case. It is not the case of the appellant that the findings of the appellate Court are the result of consideration of inadmissible evidence or omission of any evidence from consideration. 15. In my view, no substantial question of law arises in this appeal. There is merit in this appeal. The same is dismissed. No costs.