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2018 DIGILAW 859 (HP)

Som Nath v. Dina Nath

2018-05-09

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J —By way of this appeal, the appellant has challenged the judgment and decree dated 08.06.2004, passed by the Court of learned District Judge, Una in Civil Appeal No. 32 of 2003, vide which learned Appellate Court while allowing the appeal, set aside the judgment and decree dated 18.02.2003, passed by the learned Trial Court in Civil Suit No. 87/98, whereby the Court of learned Sub Judge 1st Class, Court No. 1 had dismissed the suit of the plaintiffs. 2. Brief facts necessary for the adjudication of the present appeal are that respondentsplaintiffs (hereinafter referred to as "the plaintiffs") filed a suit for separate possession by way of partition of the land in abadi deh. According to the plaintiffs, the suit land was jointly owned and possessed by the parties in equal shares. Sh. Ralla Ram was the common ancestor of the parties. The plaintiffs were the successors of Hans Raj, son of Ralla Ram and the appellantdefendant (hereinafter referred to as "the defendant") was the maternal grand son of Sh. Mast Ram, son of Sh. Ralla Ram. According to the plaintiffs, the suit land had not been partitioned and major portion of the same was still lying vacant. According to the plaintiffs, earlier they had filed a Civil Suit No. 165/88, wherein they had claimed exclusive titled over a part of the suit property, i.e., Civil Suit titled Jamuna Devi Vs. Som Nath, which stood dismissed and against which appeal filed by them was pending adjudication. However, as the defendants were threatening to raise construction over the vacant part of the suit property, therefore, this necessitated the filing of the Civil Suit. 3. By way of their written statement, defendant denied the case of the plaintiffs and pleaded that there was no jointness of any kind between the parties, as the parties were separate in food and worship since the time of their ancestors. As per the defendants, the vacant land was also in separate possession of the parties and as the plaintiffs were not successful in the earlier suit, the second suit has been filed without any cause or reason. 4. On the basis of pleadings of the parties, learned trial Court framed the following issues: "1. Whether the suit land marked by letters ABCDEFGHIJKL shown in red colour is jointly owned and possessed by the parties?OPP 2. 4. On the basis of pleadings of the parties, learned trial Court framed the following issues: "1. Whether the suit land marked by letters ABCDEFGHIJKL shown in red colour is jointly owned and possessed by the parties?OPP 2. If issue No. 1 is proved, what are the share of the parties over the suit land? OPD 3. Whether the plaintiff is entitled to seek partition of the suit land? OPP 4. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction, if so, what is the correct valuation of the suit property? OPD. 5. Relief." 5. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed: "Issue No. 1: Yes. Issue No. 2: No. Issue No. 3: No. Issue No. 4: No. Relief: The suit is dismissed as per operative portion of the judgment." 6. Learned trial Court vide judgment and decree dated 18.02.2003 dismissed the suit by holding that though from records it was clear that the abadi deh land was jointly owned and possessed by both the parties alongwith other proprietors of the village, however, it was not proved as to in which area the plaintiffs had been denied ownership and possession in Civil Suit No. 165/88. Learned trial Court also held that plaintiffs were not able to prove that there was any vacant land for partition or that what was their share in the said land. 7. Feeling aggrieved, plaintiffs filed an appeal, which stood allowed by the learned Appellate Court vide judgment and decree dated 08.06.2004. 8. Learned Appellate Court while decreeing the suit and setting aside the judgment and decree passed by the learned trial Court held that even if it was assumed that plaintiffs had not filed the correct site plan alongwith the plaint, this was no ground to nonsuit the plaintiffs. This was more so for the reason that it stood proved that suit property was joint inter se the parties. Learned appellate Court also held that a simple contention on behalf of the defendant that parties were living separately and were having their separate abadis over the suit land did not ip so facto establish that the suit property stood partitioned between the parties by metes and bounds. Learned appellate Court also held that a simple contention on behalf of the defendant that parties were living separately and were having their separate abadis over the suit land did not ip so facto establish that the suit property stood partitioned between the parties by metes and bounds. It was settled law that members of a family may have different houses in the same village and they may be paying separate house taxes, but this did not mean that there was partition of the joint property, previously held by a common ancestor. Learned appellate Court held that it was simply an arrangement for the convenience, but the same did not amount to partition of the suit land. Learned Appellate Court also held that it was settled law that where a cosharer was in possession of the joint property under an arrangement consented to by the other coowners, he could use such portion of the property till the same was partitioned in accordance with law, but such enjoyment would not amount to partition under the law. Learned Appellate Court also held that it was also well settled that in abadi deh, every proprietor could build a Kotha or house and in fact, abadi deh was meant for construction of houses and with the consent of the proprietors, some area could be kept for the common purpose of the village. Learned Appellate Court concluded by holding that plaintiffs had a legal right to get the share in the suit property by way of partition and observations made by the learned trial Court, which took the contrary view were liable to be set aside. It further held that plaintiffs in the plaint had stated that they were successorsininterest of Hans Raj, whereas the defendant had inherited the estate of Mast Ram on the basis of Will and both Hans Raj and Mast Ram were real brothers. On these basis, learned Appellate Court held that the plaintiffs were entitled to half share in the suit property as well as in the vacant land and that at the time of partition, the possessions of the parties as per their share would be respected. Accordingly, while setting the judgment and decree passed by the learned trial Court, learned Appellate Court decreed the suit in the following terms: "28. Accordingly, while setting the judgment and decree passed by the learned trial Court, learned Appellate Court decreed the suit in the following terms: "28. As a sequel of my detailed discussion made hereinabove, the present appeal is accepted and the impugned judgment and decree passed by the learned trial Court is hereby set aside. Accordingly, the suit filed by the plaintiffs is decree and a preliminary decree for partition of half share in respect of abadi deh marked with letters ABCDEFGHIJKL shown red in the site plan over land measuring 2 kanal bearing khasra No. 1257, Khewat No. 1643 (min) , Khatauni No. 2687 (min) as entered in the jamabandi for the year 198586, situate in village Palkwah, Sub Tehsil Haroli, District Una, H.P. is passed in favour of the plaintiffs against the defendant. Parties are left to bear their own costs. Decree sheet be prepared accordingly." 9. Said judgment and decree passed by the learned Appellate Court stands assailed by the defendant/appellant by way of this appeal, which was admitted on 15.12.2004 on the following substantial question of law: "Whether learned District Judge below erred in appreciating the evidence, particularly, statement of PW1 and documents Ex. PW1/A thereby vitiating the impugned judgment and decree? 10. I have heard the learned counsel for the parties and have also gone through the judgments and decrees passed by the learned Courts below, as also the evidence on record. 11. During the course of arguments, learned counsel for the appellant had limited his submissions only to the factum of incorrect appreciation of the statement of PW1, as also document Ex. PW1/A. In my considered view, it cannot be said that learned Appellate Court erred in appreciating the evidence in general or in particular the statement of PW1, as also Ex. PW1/A. 12. Pw1 Trilok Nath, who was plaintiff No. 3, deposed in the Court as to how the suit property dwelled upon them as also the defendant by mentioning the details as to who were their common ancestors. This witness categorically deposed in the Court that no partition by way of metes and bounds had taken place with regard to the suit land between them and the defendant and he also proved in Court spot map Ex. This witness categorically deposed in the Court that no partition by way of metes and bounds had taken place with regard to the suit land between them and the defendant and he also proved in Court spot map Ex. PW1/A. When we peruse the judgment passed by the learned Appellate Court, one finds that learned Appellate Court while taking note of the statement of said witness, mentioned that Trilok Nath had deposed that the suit property was joint inter se the parties and that their ancestors were common and that defendant got the share of Mast Ram on the basis of Will. Learned Appellate Court took note of the fact that this witness had deposed that some portion of the suit land was vacant and a suit previously filed by them stood dismissed. Learned Appellate Court also took note of the fact that this witness had deposed that there was a family partition with regard to the suit property between the parties, which was got effected by the Gram Panchayat and the parties were in possession of the land on the basis of the same, but thereafter, defendant had started raising forcible construction over the suit property. Now, when one peruses the deposition of PW1 Trilok Nath, one finds that there is no misreading of the statement of this witness by the learned Appellate Court. The deposition of this witness has not only been rightly construed by the learned Appellate Court, but it has not read anything in the same which was not so mentioned therein by the said witness. 13. During the course of arguments, learned counsel for the appellant could not point out from the records as to which portion of the statement had been misread or misappreciated by the learned Appellate Court. Similarly, with regard to site plan Ex. PW1/A, learned Appellate Court has clearly held that not only the relief prayed for by a party can be mounded, but simply because there was some infirmity in the site plan, this did not mean that the plaintiffs were not entitled for the reliefs prayed for, which otherwise stood established from the records of the case. 14. Having carefully gone through the evidence on record, in my considered view, the findings so returned by the learned Appellate Court cannot be faulted with. 14. Having carefully gone through the evidence on record, in my considered view, the findings so returned by the learned Appellate Court cannot be faulted with. Plaintiffs were in fact entitled for the reliefs which have been granted by the learned Appellate Court. It cannot be said that either there is any misreading or misappreciation of the statement of PW1 or Ex. PW1/A. Substantial question of law is answered accordingly. 15. Accordingly, as there is no merit in the present petition, the same is dismissed. Miscellaneous applications, if any, also stand disposed of. No order as to costs.