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2004 DIGILAW 1192 (RAJ)

LRs of Pukhraj v. Shyamlal @ Radhey Shyam

2004-08-23

SUNIL KUMAR GARG

body2004
Judgment Sunil Kumar Garg, J.-Heard at admission stage. 2. In this second appeal, the following findings of facts were- recorded by the learned Civil Judge (SD), Jalore through Judgment and decree dated 8.5.1997 in civil original suit No. 4/95 and the same were upheld by the learned District Judge, Jalore through Judgment and decree dated 12.2003 inappealNo. 28/97:- (i) That disputed wall marked K to L in site plan Ex. 1 is a joint property between the plaintiffs-appellants and defendants-respondents. (ii) That since it is a joint property, therefore, plaintiffs-appellants had a right to seek partition of the disputed joint wall. (iii) That since the disputed wall is very old one and is in a dilapidated condition, therefore, it was not possible to make division of that wall by metes and bounds and practically also that cannot be divided between two. (iv) That so far as comparative need of the disputed joint wall between the parties was concerned, there was no need now for the plaintiffs-appellants and need of the defendants-respondents for the disputed joint wall was found more and thus, plaintiffs- appellants should be compensated by a reasonable compensation and the learned Civil Judge has assessed valuation of the disputed wall at Rs. 10,000/-and the plaintiffs-appellants would be entitled to get half of that amount i.e. Rs. 5000/-from the defendants-respondents. However, on the point of compensation, the learned first appellate Court remanded the matter to the learned Civil Judge. Out of the above findings, the findings No. (iii) and (iv) have been challenged by appellants-plaintiffs in this second appeal. 3. It arises in the following circumstances: One Pukhraj, who died during pendency of the suit, filed a suit before the lower Court for permanent injunction and partition of disputed joint wall marked K to L in the site plan Ex. 1 and it was further prayed that possession of half wall be given to the plaintiffs-appellants. A written statement was filed by the defendants-respondents and their case was that no doubt disputed wall was a joint property, but practically its division was not possible. Hence, it was prayed that the suit be dismissed. On the pleadings of the parties, the learned Civil Judge framed four issues and after recording evidence and after hearing both the parties, the learned Civil Judge (SD), Jalore through Judgment and decree dated 8.5.1997 gave the findings, which have been mentioned above. Hence, it was prayed that the suit be dismissed. On the pleadings of the parties, the learned Civil Judge framed four issues and after recording evidence and after hearing both the parties, the learned Civil Judge (SD), Jalore through Judgment and decree dated 8.5.1997 gave the findings, which have been mentioned above. Aggrieved from the said Judgment and decree dated 8.5.1997 passed by the learned Civil Judge (SD), Jalore, the appellants- plaintiffs preferred first appeal being No. 28/1997 before the learned District Judge, Jalore and the learned District Judge through Judgment and decree dated 12.2003 upheld the findings recorded by the learned Civil Judge, but on point of compensation, the learned District Judge was not satisfied with the findings of learned Civil Judge and thus, remanded the case back to the learned Civil Judge with the directions that valuation of disputed joint wall be first assessed after giving opportunity of hearing to both the parties and the parties were directed to appear before the learned Civil Judge on 21.2004, meaning thereby learned District Judge was not satisfied with the award of compensation of Rs. 5000/-to the plaintiffs-appellants, though he was satisfied on the point that compensation should be awarded to the plaintiffs-appellants as division of the disputed joint wall as not practically possible. Aggrieved from the said Judgment and decree dated 12.2003 passed by the learned District Judge, Jalore, this second appeal has been filed by the plaintiffs-appellants. 4. In this second appeal, the learned Counsel for the plaintiffs-appellants has challenged the findings No. (iii) and (iv) recorded by the Courts below, which have been mentioned above. He has placed reliance on the following two decisions of this Court: (i) Poonam Chand vs. Shahveer Chand & Ors., WLN 1971 Part-I 177 = 1971 RLW 573, (ii) Shah Poonamchand vs. Veerchand & Ors., 1977 WLC (UC) 204. 5. On the other hand, it has been submitted by the learned Counsel for the defendants-respondents that since there are concurrent findings of facts recorded by the Courts below and they do not suffer from any basic infirmity or illegality, therefore, they should not be disturbed in second appeal. Apart form this, legal position as is found in R. Ramaprasada Rao vs. R. Subharamaiah & Ors., AIR 1958 Andhra Pradesh 647, and Badri Narain Prasad Choudhary & Ors. Apart form this, legal position as is found in R. Ramaprasada Rao vs. R. Subharamaiah & Ors., AIR 1958 Andhra Pradesh 647, and Badri Narain Prasad Choudhary & Ors. vs. Nil Ratan Sarkar (1978) 3 SCC 30 , supports the view taken by the Courts below. 6. I have heard the learned Counsel for the appellants- plaintiffs and the learned Counsel for the defendants-respondents and gone through the materials available on record. 7. There is no dispute on the point that the disputed wall was a joint property between the parties. 8. There is also no dispute on the point that while deciding issue No. 2A, the learned Civil Judge gave a specific finding that since the disputed wall was a joint property, therefore, plaintiffs-appellants had a right to get partition of the disputed joint wall. 9. There is also no dispute on the point that while deciding issue No. 2, the learned Civil Judge came to the conclusion that the partition of the disputed joint wall was not practicable and he also came to the conclusion that need of the defendants-respondents for the disputed wall was more as compared to plaintiffs-appellants, therefore, he awarded compensation of Rs. 5000/-to the plaintiffs-appellants for the ownership of the disputed joint wall. 10. Beforeproceeding further, it may be stated here that under Section 2 of the Partition Act, 1893 (hereinafter referred to as “the Act of 1893”), Court has been given power to order sale instead of division in partition suits in some cases. The conditions, which have to be satisfied before the Court can exercise the power under Section 2 of the Act of 1893 are as follows: .(i) That there has to be a request by a shareholder or shareholders interested individually or collectively to the extent of atleast a moiety of the property; .(ii) That the Court must be of opinion that by reason of the nature of the property or the number of shareholders or some special circumstances, a division ot the property cannot reasonably or conveniently be made and a sale of the property and distribution of the proceed should be more beneficial for all the shareholders. 11. 11. Even when both these conditions are satisfied, the Court has a discretion to direct or not to direct sale of the property and distribution of the proceeds, as the word “may” is used in this Section It is further made clear that in the absence of finding that a division of the property cannot reasonably or conveniently be made, action cannot be taken under Section 2 of the Act of 1893. 12. Theprinciple underlying Section 2 of the Act of 1893 is that partition ought not to be made, if by partition the intrinsic value of the property would be destroyed. In such a case, money compensation should be given in lieu of the share to which a shareholder may be entitled. The Court can adopt this method by making equitable partition of the joint property in exercise of its own discretion. 13. Thus, it can be held that where the partition was possible only after demolition of property, a reasonable price was to be fixed as due compensation for disputed property instead of demolition. 14. These principles were found in the Judgment of Andhra Pradesh High Court in the case of R. Ramaprasada Rao (Supra), and for convenience, the relevant portion of para 23 of that Judgment is quoted here: “A joint family or joint owners may be possessed of innumerable items of different extent, value, quality and nature. In dividing the properties among the various co-owners, it may not always be possible to divide every item into distinct shares. A property will have to be allotted to one of the sharers and the other has to be compensated with money. This is technically, called owelty. Sometimes, the property to be divided may consist of only one item, which cannot conveniently and equitably be divided between the members in which case the Court may allot that item to one co-sharer and direct him to pay the value of the share of the other sharer in money. This is technically, called owelty. Sometimes, the property to be divided may consist of only one item, which cannot conveniently and equitably be divided between the members in which case the Court may allot that item to one co-sharer and direct him to pay the value of the share of the other sharer in money. A Court may also be confronted with a situation, namely, that the item of property is not capable of physical partition or is such that, if divided, it will lose its intrinsic worth, in such a case, that item is allotted to one and compensation in money value is given to the other and if such a course is not possible it is sold outright and the sale proceeds divided between the joint owners. All the aforesaid and similar other methods are adopted by Courts in making an equitable partition of the joint properties either with the consent of the parties or where such consent is not forthcoming, in exercise of its own discretion. Whatever method is adopted, it is only to implement the process of equitable partition. It would well-nigh be impossible for a Court to effectuate a partition on an equitable basis, if it should be held that it is under a legal obligation to divide every item of the joint property in specie. Where properties are susceptible of such division, the Court adopts it. Where it is not, it adopts one or other of the alternative methods narrated above. The provisions of the Partition Act do not, in any way, entrench upon the undoubted power of the Court to effectuate a partition between co-owners in one or other of the methods suggested above. Before the Act, a party had no right to insist upon the Court to follow a particular course in the process of partition or to insist upon purchasing the share of the other co- owner under certain circumstances.” 15. Before the Act, a party had no right to insist upon the Court to follow a particular course in the process of partition or to insist upon purchasing the share of the other co- owner under certain circumstances.” 15. Theabove law laid down by the Andhra Pradesh High Court in the case of R. Ramaprasada Rao (Supra), was further approved by the Hon’ble Supreme Court in the case of Badri Narain Prasad Choudhary (Supra), where in para 19, the Hon’ble Supreme Court observed as follows: “The suit property, being incapable of division in specie, there is no alternative but to resort to the process called owelty, according to which, the rights and interests of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment ofjust compensation to the other. As rightly pointed out by K. Subha Rao, CJ (speaking for a Division Bench of Andhra High Court in R. Ramaprasada Rao vs. Subharamaiah (Supra), in cases not covered by Sections 2 and 3 of the Partition Act, the power of the Court to partition property by any equitable method is not affected by the said Act.” 16. In thepresent case, a bare perusal of the Judgment s of the Courts below would reveal that the above law was in their mind while delivering Judgment s and deciding issues of the present case. 17. When there are specific findings that disputed wall was a joint property between the parties and it was in a dilapidated condition and that cannot be got repaired and further, its partition was not practically possible, therefore, in these circumstances, if the Courts below have come to the conclusion that compensation be awarded to the appellants-plaintiffs, they have committed no illegality in doing so as these findings are simply findings of facts supported by the law as stated above. 18. Thus, since there are concurrent findings of facts recorded by the Courts below and they cannot be said to be erroneous or perverse one or based on no material, therefore, they are not to be interfered with by this Court in second appeal as no substantial question of law to disturb these findings of facts arises. 19. So far as the finding of learned Civil Judge awarding compensation of Rs. 19. So far as the finding of learned Civil Judge awarding compensation of Rs. 5000/-to the plaintiffs-appellants, which was not found proper by the learned First Appellate Court is concerned, the learned First Appellate Court was right in that respect and the learned First Appellate Court has rightly remanded the matter on that point of compensation. 20. In this respect, it may be stated here that valuation of Rs. 10,000/-as fixed by the learned Civil Judge for the disputed joint wall and awarding of compensation to the tune of Rs. 5000/-was certainly not a fare compensation for the plaintiffs-appellants, keeping in mind the fact that cost of property has been increased considerably to a great extent. 21. This Court is aware that value of the property could be fixed by auction between the two parties, but this method would be unsatisfactory in this case and thus, more equitable method would be to give concrete finding about the valuation of the disputed joint wall after giving opportunity of hearing to both the parties and for that, if both parties intend to lead evidence, the learned Civil Judge should allow them to do so and thereafter, valuation of disputed joint wall be fixed. Therefore, order of remand on point of compensation, as passed by the learned First Appellate Court, from every point of view, appears to be just and proper. 22. So far as the rulings relied upon by the learned Counsel for the plaintiffs-appellants in the cases of Poonam Chand (Supra), and Shah Poonamchand (Supra), are concerned, it may be stated here that this Court has very well taken the decision that in joint wall, parties can use every portion, but here in this case, since it was a suit for partition of joint wall and it was found that it was not practicable to make partition of disputed joint wall, therefore, orders were passed for award of compensation to plaintiffs-appellants. Therefore, the above rulings would not come to help the plaintiffs-appellants. 23. For the reasons stated above, no interference is called for with the concurrent findings of facts recorded by the Courts below as they do not suffer from any basic infirmity or illegality and they cannot also be said to be erroneous or perverse and further, no substantial question of law arises in this second appeal and thus, the same is liable to be dismissed. Accordingly, this second appeal filed by the plaintiffs- appellants is dismissed.