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2010 DIGILAW 2945 (PNJ)

Lachhi Ram v. Sukhmal Chand

2010-10-26

HEMANT GUPTA

body2010
JUDGMENT HEMANT GUPTA, J. - The defendant is in revision aggrieved against the order passed by the learned first Appellate Court on 20.1.1996, permitting the plaintiff to withdraw the suit in appeal subject to payment of Rs.1000/- as costs. 2. Plaintiff-respondent No.1 filed a suit for separate possession by partition of the immovable property as detailed in the plaint. It is alleged that one Deep Chand, father of the plaintiff and defendant Nos. 1 and 2 and predecessor-in-interest of defendant Nos. 3 and 4, were owners of the ancestral property along with others. After the death of Shri Deep Chand, the joint property was partitioned vide partition deed dated 7.6.1946 between the plaintiff, his uncle Jai Prakash and his brothers. Defendant No.1-Mehar Chand is the eldest brother of the plaintiff, whereas defendant No.2 is another elder brother of the plaintiff. Defendant Nos. 3 and 4 are the sons of his another brother Tara Chand (pre-deceased). The plaintiff and defendant Nos. 1 to 4 are thus, co-sharers and joint owners of the suit property having 1/4th share. The plaintiff sought partition of the property for the beneficial use of the property by the plaintiff. 3. In the written statement, defendant No.1 pleaded that the property stands already partitioned. Defendant No.2 got his share vide agreement dated 2.8.1968, whereas Tara Chand, father of defendant Nos. 3 and 4 got his share vide agreement dated 8.9.1965. The plaintiff has also got his share through agreement dated 11.11.1971. In a separate written statement, defendant No.2 alleged that shop No. 516 was his self acquired property and that defendant No.1 be directed to compensate him and defendant Nos. 3 and 4 with regard to the sale consideration of the two shops i.e. Shop Nos. 65 and 76. Defendant Nos. 3 and 4 submitted joint written statement dated 7.12.1984 admitting the claim of the plaintiff. Defendant No.5 is the purchaser from defendant No.1 through sale deed dated 14.10.1977, whereas defendant No.6 has allegedly purchased shop vide sale deed dated 20.2.1978 from defendant No.1. 4. On the basis of the pleadings, issue No.1 was framed by the learned trial Court, which is to the effect, whether the properties in suit are joint properties of the parties? The learned trial Court recorded a finding that the properties are not joint as the same stand partitioned vide agreement dated 11.11.1971. Consequently, the learned trial Court dismissed the suit. 5. The learned trial Court recorded a finding that the properties are not joint as the same stand partitioned vide agreement dated 11.11.1971. Consequently, the learned trial Court dismissed the suit. 5. In appeal, the plaintiff filed three applications, one for permission to amend the plaint, second for additional evidence and third for the purposes of framing additional issues. In the application to seek amendment, the plaintiff sought to deny the agreement dated 11.11.1971 alleging the same to be act of fraud and misrepresentation. It was pleaded that the plaintiff in good faith and under the bona-fide belief filed a suit for separate possession, which included the relief of possession of the property as per the agreement dated 11.11.1971. The plaintiff also averred that he did not execute the receipt of Rs.2000/-as per the agreement dated 11.11.1971. Said receipt was said to be an outcome of fraud and not binding upon the plaintiff. 6. In an application for additional evidence, the plaintiff wanted to produce the handwriting expert to prove that the receipt dated 23.6.1974 is not signed by him as also the evidence that he was on duty at Allahabad on the said date. Applications for framing additional issues was to the effect of framing the issues in respect of execution of the agreement dated 11.11.1971, receipt dated 23.6.1974 and whether the defendants have made the payment of Rs.2000/-to the plaintiff as per the agreement dated 11.11.1971. The learned first Appellate Court vide order dated 8.9.1994 dismissed the applications for amendment and framing of additional issues, but allowed the application for additional evidence, by recording the following finding:- “12. Now adverting to the application for additional evidence it may be mentioned at the outset that as envisaged by Order 41 Rule 27 C.P.C. this application for additional evidence should be allowed, because the Court in order to do justice between the parties and to pronounce the judgment requires the evidence of the handwriting expert because the plaintiff has denied the signatures on the receipt dated 23.6.1974, Ex. DW4/A and mere fact that there is no specific denial in the replication about the execution of the receipt and about the receipt of Rs.2000/-is no ground to refuse additional evidence because learned Sub Judge, has not specifically framed issue on the agreement dated 11.11.1971, which is basis of the case of defendant No.1 as per averments contained in para. DW4/A and mere fact that there is no specific denial in the replication about the execution of the receipt and about the receipt of Rs.2000/-is no ground to refuse additional evidence because learned Sub Judge, has not specifically framed issue on the agreement dated 11.11.1971, which is basis of the case of defendant No.1 as per averments contained in para. No. 1 of the written statement. Defendant No.1 has pleaded himself as owner of the shop which he has sold by virtue of agreement dated 11.11.1971, and also by virtue of having paid Rs.2,000/-to the plaintiff in pursuance of the agreement/destbardari dated 11.11.1971 and defendant has produced the attesting witnesses of the receipt and that receipt is scribed by the defendant himself as per his version. If the payment of Rs.2,000/-as stipulated in the agreement dated 11.11.1971 is not proved then defendant No.1, prima-facie does not become owner of the shop which he has sold in favour of Lacchi Ram and Mam Chand, defendant/respondent because according to the very agreement set up by defendant No.1, these shops and some portion of the house was allotted to the plaintiff and it was stipulated in the agreement that if the plaintiff is paid Rs.2,000/-within 3 years of the execution of the agreement, defendant No1 would become owner of the shops and the rights/interest if any of the plaintiff would stand relinquished in favour of the defendant and if the payment is not proved, the plaintiff is proved prima-facie owner of the suit shop and prima facie defendant No.1 cannot pass better title in favour of Lachi Ram and Mam Chand, who have also pleaded themselves as bona-fide purchaser. If impugned agreement dated 11.11.1971 is not proved, the suit property are proved joint and in that event prima-facie defendant No.1, as one of the co-sharers is competent to alienate the shops subject adjustment at the time of partition in order to settle these various material points and to do complete justice between the parties, production of the additional evidence sought by the plaintiff-appellant, is essential and there is also substantial cause for non production of this evidence earlier because there was no specific issue framed on the agreement/receipt by the learned Sub Judge.” 7. The plaintiff challenged the order declining the applications for amendment of the plaint and the replication as well as for framing of the additional issues before this Court by way of Civil Revision No. 24 of 1995. The said revision petition was dismissed on 17.10.1995, when the following order was passed:- “No ground to interfere. Dismissed. Petitioner shall be at liberty to make an application to withdraw the suit with permission to file a fresh one on the same cause of action. In case such an application is filed, the same shall be disposed of in accordance with law.” 8. The plaintiff, thereafter, moved an application for withdrawal of the suit pointing out that there are formal defects in the pleadings and that there exist sufficient grounds for allowing the plaintiff to institute a fresh suit on the same cause of action. The learned first Appellate Court permitted the plaintiff to withdraw the suit with permission to file a fresh suit on the same cause of action subject to payment of Rs.1000/-as costs vide order dated 20.1.1996. Aggrieved against the said order passed by the learned first Appellate Court, defendant-Lachhi Ram, is in revision. 9. It is contended that the learned trial Court has returned a finding that the agreement dated 11.11.1997 stands executed and, therefore, such finding cannot be permitted to be avoided by the plaintiff by permitting him to withdraw his suit in appeal. It is contended that after the decree is passed by the learned trial Court, vested rights have accrued in favour of the defendant and such rights cannot be defeated in the manner sought by the plaintiff. Reliance is placed upon R. Rathinavel Chettiar v. V. Sivaraman and others, (1999) 4 SCC 89 and Sneh Gupta v. Devi Sarup and others, (2009)6 Supreme Court Cases 194. 10. On the other hand, learned counsel for the respondent-plaintiff has contended that the plaintiff has been permitted to lead additional evidence in respect of the agreement dated 11.11.1971 and receipt dated 23.6.1974 and therefore, the question in respect of the execution of the agreement dated 11.11.1974 is to be decided afresh by the learned first Appellate Court on the basis of evidence which is yet to be led by the parties. Therefore, mere fact that the learned trial Court has recorded a finding in respect of execution of the agreement dated 11.11.1971 is not a ground on the basis of which permission to file a fresh suit on the same cause of action, can be denied to the plaintiff. 11. Learned counsel for the respondent-plaintiff has relied upon Baniram and others v. Gaind and others, AIR 1982 Supreme Court 789; Nand Lal v. Bhim Sen, 2000(3) RCR (Civil) 173 and Sant Baba Darshan Singh Sewak Baba Kharak Singh v. School Beerh Baba Budha Sahib and others, 2006(2) RCR (Civil) 160, to contend that for good and sufficient reasons, suit can be permitted to be withdrawn in appeal as well. 12. I have heard learned counsel for the parties and find that the order passed by the learned first Appellate Court does not suffer from any patent illegality or material irregularity. There is no dispute about the proposition that after decision of the suit, the rights of the parties are crystalised and such rights cannot be set at naught without good and sufficient reasons. But even in R. Rathinavel Chettiar’s case (supra), the Hon’ble Supreme Court has held that the vested rights of the parties under the decree cannot be taken away by withdrawal of the suit at the appellate stage unless there are very strong reasons that the withdrawal would affect or prejudice anybody’s vested rights. In Sneh Gupta’s case (supra), reliance was placed upon R. Rathinavel Chettiar’s case (supra). 13. In the present case, the suit of plaintiff is for partition of the joint property. The assertion of defendant No.1 is of the partition of the joint property vide agreement dated 11.11.1971. Though the learned trial Court held that such agreement stands proved, but the learned first Appellate Court has allowed the application for additional evidence holding that in order to do justice between the parties and to pronounce the judgment, the evidence of handwriting expert is required. It is also found that no issue was framed in respect of the agreement dated 11.11.1971, which is the basis of the case of defendant No.1 and, therefore, the plaintiff was granted opportunity to lead additional evidence. It is also found that no issue was framed in respect of the agreement dated 11.11.1971, which is the basis of the case of defendant No.1 and, therefore, the plaintiff was granted opportunity to lead additional evidence. Therefore, it cannot be said that the finding recorded by the learned trial Court in its judgment and decree dated 11.11.1975 gives rise to any vested right in favour of the defendants as such finding stands whittled down after the first Appellate Court granted permission to lead additional evidence in respect of such agreement. The said order passed by the learned first Appellate Court stands affirmed with the dismissal of the revision petition. An observation was made by this Court that it shall be open to the plaintiff to move an application for withdrawal of the suit with permission to file a fresh suit on the same cause of action, while dismissing the revision petition. Therefore, the liberty granted has co-relation with the order of dismissal of the revision petition. Such liberty cannot be ignored lightly. 14. In view of the above, I am of the opinion that since the plaintiff has been granted liberty to lead additional evidence in respect of the agreement dated 11.11.1971 and receipt dated 23.6.1974, therefore, the finding recorded by the learned trial Court cannot be said to have given rise to any vested rights in favour of the defendants, which will stand negated if the plaintiff is permitted to withdraw the suit at the appellate stage. 15. The judgments referred to by the learned counsel for the petitioner are to be examined in the context of the facts of each case. In a suit for partition of the joint property, the plea of partition by the defendant cannot be said to be binding so as to give rise to any right in favour of the defendant, when application for additional evidence has been allowed by the first Appellate Court and the revision against the said order stands dismissed. Therefore, no vested right of the defendants is said to be taken away by the plaintiff when he seeks to withdraw the suit for partition. The learned trial Court has recorded finding on issue Nos. 6 and 7 that the plaintiff has no locus standi to file the suit and the suit is not maintainable as the property has fallen to his share through agreement dated 11.11.1971. The learned trial Court has recorded finding on issue Nos. 6 and 7 that the plaintiff has no locus standi to file the suit and the suit is not maintainable as the property has fallen to his share through agreement dated 11.11.1971. The agreement dated 11.11.1971 is required to be proved by the parties in appeal, therefore, the formal defects can be said to exist in the suit which gives rise to a right to the plaintiff to withdraw the suit with permission to file a fresh suit on the same cause of action. 16. Consequently, I do not find any patent illegality or material irregularity in the impugned order passed by the learned first Appellate Court. Hence, the present revision petition is dismissed.