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2011 DIGILAW 310 (PNJ)

Chhote Lal alias Chhotu v. Kaushalya Devi

2011-01-25

M.M.S.BEDI

body2011
JUDGMENT Mr. M.M.S. Bedi, J.(Oral):- For the reasons mentioned in the applications the delay in filing and refilling of the appeal is condoned. Applications stands disposed of. 2. The plaintiff has preferred this second appeal against the judgment and decree passed by the Courts below dismissing the suit of the plaintiff- appellant for declaration that the sale deed executed by his father and grand-father in favour of defendant No.1 vide sale deed dated June 9, 1987 was illegal and not binding upon the rights of plaintiff being coparcenary joint Hindu family property. 3. Counsel for the plaintiff- appellant has contended that the plaintiff was born in the year 1980 and he became major in the year 1998. He filed a suit in January 2001, challenging the sale deed. The main contention of counsel for the plaintiff- appellant is that under issue No.1, the trial Court has given a finding that the property sold to defendant no.1 by defendants No. 2 and 3 was a coparcenary property. In view of the said finding which has become final having not been challenged by any of the defendants, the Court should have set aside the sale deed holding that it was without legal necessity. He has urged that the father of plaintiff- appellant, namely, Sant Lal was having loose moral character and he had alongwith his mother wrongly sold the property belonging to joint Hindu Coparcenary property. 4. I have heard counsel for the appellant. The finding of the trial Court on issue No.1 regarding the house in dispute being a coparcenary property of Hindu Undivided family of plaintiff- appellant and defendant-respondents No.2 and 3, though has not been challenged by anyone before the lower Appellate Court but no reasoning seems to have been given by the Courts below to arrive at a conclusion that the property sold by defendants No.2 and 3 long time back i.e. on June 9,. 1987 was a joint Hindu family coparcenary property. No evidence seems to have been produced by the plaintiff to establish as to how the property had come in the hands of Ami Lal, the grand-father or whether the property was purchased from the funds which constituted the nucleus. 1987 was a joint Hindu family coparcenary property. No evidence seems to have been produced by the plaintiff to establish as to how the property had come in the hands of Ami Lal, the grand-father or whether the property was purchased from the funds which constituted the nucleus. Even if it is presumed that a finding of fact has been arrived at by the trial Court about the nature of the property being joint Hindu coparcenary property, there is simultaneously finding arrived at by the trial Court that the defendant- respondent No.1 is a bonafide purchaser of the property without knowledge of the property being a joint Hindu Family coparcenary property. The civil suit has been filed by the plaintiff-appellant 14 years after the execution of the sale deed. The lower Appellate Court has rightly held that the suit is barred by limitation. The evasive approach of defendants No.2 and 3 in not contesting the case has been held to be a proof of collusion of the plaintiff with defendants No.2 and 3. The lower Appellate Court in para 17 of the judgment has specifically observed that the plaintiff has not been able to prove the plea that property was purchased from joint Hindu family funds or that it was maintained by Karta of HUF. Counsel for the appellant has not been able to satisfy this Court has to what evidence had been produced on the record by the plaintiff to establish that the property was joint Hindu family coparcenary property in the hands of the sellers. No ground is made out for interference in the judgment and decree passed by the Courts below on appreciation of evidence. 5. Dismissed. -----------0.K.B.0------------ Balbir Singh v. Prem Kauldhar & Anr. 2011(1) Law Herald (P&H) 834 IN THE HIGH COURT OF PUNJAB AND HARYANA Before The Hon’ble Mrs. Justice Sabina R.S.A. No. 529 of 2011 (O&M) Balbir Singh v. Prem Kauldhar & Anr. {Decided on 31/01/2011} For the Appellant: Mr. H.S. Baath, Advocate. Partnership Act, 1932--Dissolution of firm and rendition of accounts--Plaintiff claiming partnership--Plaintiff placed reliance on agreement Ex. P-1--Parties agreed to start a business--Deed was to be executed later on--Initially, Firm was started in 1988 by ‘H’ and ‘P’ as partner, which was never dissolved--Held, plaintiff failed to establish that he was partner of the present firm or his contribution in the said firm--No interference--Appeal dismissed. (Para 8) JUDGMENT Mrs. P-1--Parties agreed to start a business--Deed was to be executed later on--Initially, Firm was started in 1988 by ‘H’ and ‘P’ as partner, which was never dissolved--Held, plaintiff failed to establish that he was partner of the present firm or his contribution in the said firm--No interference--Appeal dismissed. (Para 8) JUDGMENT Mrs. Sabina, J.: - Plaintiff filed a suit for dissolution of firm and rendition of accounts. 2. The case of the plaintiff, in brief, was that the plaintiff alongwith defendants was partner of the firm doing the business of brick-kiln in village Mahalpur. The partnership was in the name and style of M/s Hardev Lal Prem Kauldhar. The total capital of the partnership was Rs.2,25,000/- and plaintiff had contributed Rs.1,25,000/- out of the said amount. Thus, the plaintiff was share holder to the extent of 50% of the total capital. Defendant No.2 later withdrew from the partnership vide writing dated 27.5.1991. It was an oral partnership. It was mutually agreed between the partners that the regular books of accounts will be maintained. Defendant No.1 was required to render accounts of other partners. A bank account was also opened in the name of the firm. It was being jointly operated by the plaintiff and defendant No.1. Defendant No.1 had now made it impossible for other partners to carry out partnership business and hence, the suit was filed for dissolution of firm and rendition of accounts. 3. Defendant No.1 in his written statement averred that the plaintiff had got on lease the share of defendant No.1. and the same was terminated on 10.5.1992. Plaintiff was not a partner in the firm. Plaintiff had no share in the partnership capital. 4. Defendant No.2, in his written statement, averred that the plaintiff and defendant No.2 had got on lease the share of defendant No.1 in equal shares and were to share the profits and loss falling to the share of defendant No.1. Defendant No.2 had never become partner of the firm. 5. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is partner in firm M/s Hardev Lal Prem Kauldhar? OPP. 2. Whether the plaintiff is entitled to the rendition of accounts as pleaded ? OPD 3. Whether the plaintiff has no locus standi to file the present suit ? OPD 4.Whether the present suit is not maintainable ? OPD 5. Relief.” 6. Whether the plaintiff is partner in firm M/s Hardev Lal Prem Kauldhar? OPP. 2. Whether the plaintiff is entitled to the rendition of accounts as pleaded ? OPD 3. Whether the plaintiff has no locus standi to file the present suit ? OPD 4.Whether the present suit is not maintainable ? OPD 5. Relief.” 6. The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 15.11.2002. Aggrieved by the same, plaintiff preferred an appeal and the same was also dismissed vide judgment and decree dated 14.8.2010 passed by District Judge, Shaheed Bhagat Singh Nagar. Hence, the present appeal by the plaintiff. 7. After hearing learned counsel for the plaintiff, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. 8. The case of the plaintiff was that he was a partner in the firm M/s Hardev Lal Prem Kauldhar. Plaintiff had contributed Rs.1,25,000/- towards the firm. Reliance was placed by the plaintiff on agreement Ex.P-1 to substantiate his case but both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that Ex.P-1 was not a partnership deed. As per Ex.P-1, parties had agreed to start a business but the deed was to be executed later on. Initially firm M/s Hardev lal Prem Kauldhar was started in the year 1988 with its partners Hardev Lal and Prem Kauldhar. The said partnership was, however, never dissolved. Plaintiff had also failed to establish that he had invested Rs.1,25,000/- in the business of the firm. Since the plaintiff had failed to establish the fact that he was partner of the present firm M/s Hardev Lal Prem Kauldhar or his contribution in the said firm, the suit of the plaintiff was liable to be dismissed on this account. Both the Courts below had, thus, rightly dismissed the suit of the plaintiff. 9. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. -----------0.K.B.0------------