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2005 DIGILAW 458 (PNJ)

Vider Lal v. Des Raj

2005-03-30

AJAY K.MITTAL

body2005
Judgment Ajay Kumar Mittal, J. 1. This second appeal filed by the plaintiff is directed against the judgment and decree dated 30.7.1984 passed by District Judge, Hoshiarpur whereby the appeal against the judgment and decree of the trial Court dated 15.6.1983 dismissing his suit for possession by way of partition of 1/3rd share in the properties in dispute has been dismissed. 2. The dispute herein is between a brother on the one side and his mother Bakshish Kaur, Des Raj brother and sons and the daughters of his other brother Om Parkash on the other. Vider Lal son of Khushi Ram, the present appellant filed a suit for possession by way of partition of 1/3rd share in the properties fully detailed in the head note of the plaint against them alleging that Khushi Ram father of the appellant was the owner of the properties in dispute out of which properties mentioned at (i) to (iv) were allotted to him by the Rehabilitation Department whereas property mentioned at (v) in the head note of the plaint was purchased by him from one Lakha Singh vide registered sale deed dated 1.6.1960. Khushi Ram died on 21.9.1983 and before his death;he had executed a will in respect of his entire estate in favour of his son i.e. the present appellant, his wife Bakshish Kaur and sons Des Raj and Om Parkash who by virtue of the said will became owners of the aforesaid properties in equal shares. On the death of Om Parkash, 1/3rd share of the properties in dispute fell in the share of his sons and daughters i.e. respondents 3 to 8. Since the appellant did not want to keep the properties joint, he filed a suit for possession in respect of 1/3rd share by way of partition of the properties in question. 3. Claim of the appellant was stoutly contested only by Des Raj (defendant No. 1). In the written statement filed by Des Raj, it was alleged that the suit property was not joint of the parties but was the exclusive property of him. It was alleged that the suit had been filed for partial partition and the answering defendant had become owner of properties mentioned at (i) to (iv) by adverse possession since 1967 excluding the appellant, his mother Bakshish Kaur and Om Parkash predecessor-in-interest of respondents 3 to 8. It was alleged that the suit had been filed for partial partition and the answering defendant had become owner of properties mentioned at (i) to (iv) by adverse possession since 1967 excluding the appellant, his mother Bakshish Kaur and Om Parkash predecessor-in-interest of respondents 3 to 8. It was further alleged that property mentioned at (v) was purchased by Khushi Ram with the money provided by the answering defendant and Khushi Ram had given this property to him in the presence of the Panchayat by making a note to this effect on the back of the sale deed. It was further alleged that the appellant and Om Parkash (deceased) had served a registered notice on the answering defendant claiming partition of the whole property held by Khushi Ram and calling upon him to accept Rs. 1,600/- from them to get the property vacated by 15.6.1967, but since the amount was not paid by them, they lost all rights and interest in the suit property. In the written statement filed on behalf of respondents 2, 3, 5 and 8, it was stated that they had no objection if the suit was decreed. Respondents 4 and 6 were, however, proceeded ex parte. 4. The parties went to trial on the following issues: 1. Whether the property in dispute is joint property of the parties? OPP 2. Whether the suit is time barred? OPD 3. Whether the suit is bad for being partial partition? OPD 4. Whether defendant No. 1 has become the owner of the properties mentioned at items No. 1 to 5 through adverse possession? OPD. 5. Whether the property mentioned at item No. 5 was purchased by Khushi Ram with the funds provided by defendant No. 1? If so, to what effect? OPD 6. Whether the plaintiff is debarred by his act and conduct from claiming the share in the suit property item No. 1 to 4? OPD 7. Relief. 5. The trial Court on appraisal of evidence led by the parties held under issue No. 1 that the suit property was not proved to be joint of the properties, the same having already been partitioned. It did not stand proved that the suit was for partial partition. The trial Court also recorded a finding that it was not proved that Des Raj, respondent No. 1 had become owner of the suit property by adverse possession. It did not stand proved that the suit was for partial partition. The trial Court also recorded a finding that it was not proved that Des Raj, respondent No. 1 had become owner of the suit property by adverse possession. Issue No. 5 was decided against respondent No. 1 and in favour of the appellant and other respondents. Issue No. 6 was, however, decided in favour Des Raj and against the appellant and respondents 2 to 8 holding that in view of appellants own admission while appearing as his own witness as PW-1 that the partition effected by him was final as he had also divided the suit property, he was debarred from claiming share in the suit property by effecting partition. Resultantly, in view of the findings on issue Nos. 1 and 6, the suit of the appellant failed and was consequently dismissed. In the appeal carried against the judgment and decree of the trial Court, only the findings recorded under issues No. 1 and 6 were assailed and were affirmed. The appeal was consequently dismissed by the first appellate court. 6. Mr. D.R. Mahajan, learned Counsel for the appellant submitted that Vider Pal who had acted as arbitrator had decided the dispute on 10.6.1967, and the main issue is, whether the said award is an award in the eyes of law or not and is binding on the parties. According to the learned Counsel, the award was never acted upon and is thus, not enforceable. Further, according to the learned Counsel, in view of decision of the Supreme Court in Satish Kumar and Ors. V/s. Surinder Kumar and Ors., , the award, if any, required registration as the same was in respect of the property worth more than Rs. 100/-, and the same not being registered was not enforceable in law. Still further, the counsel submitted that if the alleged award was excluded from consideration then there existed no evidence or material on record to hold that the partition had taken place between the parties. According to the learned Counsel in view of Section 32 of the Arbitration Act, 1940, if an award has not been made rule of the Court, it remains a dead letter and the suit on the original cause of action is maintainable and it cannot be successfully resisted by setting up the award in defence. According to the learned Counsel in view of Section 32 of the Arbitration Act, 1940, if an award has not been made rule of the Court, it remains a dead letter and the suit on the original cause of action is maintainable and it cannot be successfully resisted by setting up the award in defence. Learned counsel for the appellant drew support from a judgment of Allahabad High Court in Ram Sahai V/s. Babu Lal, A.I.R. 1965 Allahabad 217 for this purpose. 7. Elaborating the scope of Section 100 of the Code of Civil Procedure (for short "the Code"), learned Counsel on the strength of a decision of the Supreme Court in Ishwar Dass Jain (dead) through L.Rs. V/s. Sohan Lal (dead) by L.Rs, 2000(1) Civil Court Cases 373 (S.C.) and the decision of this Court in Sarwan Singh V/s. Kankar Singh, 2001(1) Civil Court Cases 571 (P&H) submitted that this Court in exercise of its appellate jurisdiction under Section 100 of the Code shall interfere with the findings of the Courts below which have been recorded by placing reliance on inadmissible evidence and are based on misreading of evidence. 8. According to the learned Counsel for the appellant, the appeal raises the following substantial questions of law: 1. Whether the award set up by the contesting defendant Des Raj is not enforceable as the same was not acted upon inasmuch Des Raj defendant/respondent never accepted Rs. 1,600/- offered by Vider Lal plaintiff and Om Parkash the predecessor-in-interest of defendant No. 2 to 8? 2. Whether the award set up by Des Raj defendant/respondent required registration and it being not registered is not enforceable? 3. Whether the award which was not made rule of the court is enforceable? 4. Whether the claim under the award is hit by Section 32 of the Arbitration Act? 5. Whether both the learned courts below have mis-read and misinterpreted the evidence on record? 6. Whether the findings of both the learned courts below on issue Nos. 1 & 6 are based on no evidence? 9. Mr. Puri, learned Counsel appearing for the respondents very vehemently opposed the appeal and submitted that there is no mention of any award in the plaint and, in fact, it only mentions regarding will of Khushi Ram. Mr. 6. Whether the findings of both the learned courts below on issue Nos. 1 & 6 are based on no evidence? 9. Mr. Puri, learned Counsel appearing for the respondents very vehemently opposed the appeal and submitted that there is no mention of any award in the plaint and, in fact, it only mentions regarding will of Khushi Ram. Mr. Puri further submitted that the appellant had concealed the factum of partition effected by him on 10.6.1967 and has thus not come to the court with clean hands and has tried to mislead the court. According to the learned Counsel, the Apex Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. V/s. Jagannath (dead) by L.Rs. and Ors., and the Bombay High Court in Abdulla Umar Haji Ismail Merchant V/s. Subai Mura Rabari and Ors., 1998 3 CCC 386 have categorically held that a person who does not come to court with clean hands and misleads the court, should be ousted from taking shelter of the Court. Mr. Puri further submitted that the appellant cannot be permitted to agitate the points which were never raised before the courts below as according to him, the Court under Section 100 of the Code is duty bound to adjudicate only those substantial questions of law which arise from the judgment and decree of the courts below and none of the questions as claimed by the appellant arise in this appeal. 10. I have heard learned Counsel for the parties and have perused the record with their assistance. I find force in the submission of the counsel for the respondents. 11. The sole controversy raised in this appeal centers around a question whether the suit property had already been partitioned or not? The plaintiff-appellant appearing as PW-1 had candidly admitted in his cross-examination that the partition effected by him on 10.6.1967 was final and he had also partitioned the taurs. He now can not claim that the share in the suit property is joint and should be partitioned again especially when it has no where been pleaded or alleged in the plaint regarding earlier partition and its effect on the suit property. He now can not claim that the share in the suit property is joint and should be partitioned again especially when it has no where been pleaded or alleged in the plaint regarding earlier partition and its effect on the suit property. It deserves to be noticed that the finding that he suit property was not proved to be joint of the parties came to be recorded by both the courts below in view of the admission of the appellant that the partition of the suit property had been effected by him whereby he had prepared three shares of land and had also divided the trees and the taurs and the said partition was final. On the basis of this admission, the appellants assertion that the suit property was still joint of the parties cannot be considered. Learned counsel for the appellant could not point out any material from the record that any relevant evidence had not been considered, which if considered, would have led to opposite conclusion or that the courts below have placed reliance on any evidence which was inadmissible and the conclusion was thus erroneous. In fact, the appellant has not approached the court with clean hands and has tried to conceal and mislead the court by not disclosing the true facts in the plaint. Thus, no infirmity could be found in the findings recorded by the Courts below on issue Nos. 1 and 6 and the same are consequently affirmed. 12. Once the findings on issue Nos. 1 and 6 are affirmed, the only conclusion that is discernible is that there is no mistake or error in the judgment and decree of the courts below and the substantial questions of law as claimed by the appellant do not arise there from. Consequently, finding no merit in this appeal, the same is dismissed. The parties shall bear their own costs.