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2021 DIGILAW 2394 (RAJ)

Sopa Ram v. Gamna Ram

2021-12-21

DEVENDRA KACHHAWAHA

body2021
ORDER 1. Reserved on 11/11/2021 Pronounced on 21/12/2021Appellants-Defendants have preferred this first appeal under Section 96 C.P.C. to challenge the impugned judgment and decree dated 27.07.2004 passed by Additional District Judge (Fast Track) No.2, Sirohi (for short, 'learned trial Court') in Civil Original Suit No.16/2003 titled as "Gamna Ram Vs. Sopa Ram". 2. Briefly stated the facts of the case are that a civil suit was filed by plaintiff-Gamna Ram (respondent herein) against the defendant-Sopa Ram (appellant herein) with the submissions, inter alia, that one ancestral property of joint ownership ad measuring 5959 square feet and four corners of the property are mentioned at para No.l of the plaint. It was averred that the parties to the litigation claiming half-half share in the property. In the year 1970-72, the plaintiff had raised a construction of pucca house in his share of the plot for the purpose of residence at his own cost; as the patta in respect of the land in question had not been issued, the concerned Nagar Palika had issued a notice to the plaintiff treating him to be an encroachee upon the land; after receiving the notice aforesaid, the plaintiff had requested the defendant to make proceeding in the Nagar Palika, Sirohi; on being requested, the defendant had got regularized the land measuring 3520 square feet in his name whereas, the amount of Rs.2047/- as regularisation fee had jointly been borne by both the plaintiff and the defendant; on being asking by the defendant, the plaintiff had presented an application for regularisation of rest of the land in his favour but that application had been rejected; the patta of the whole of the land was issued in the name of the defendant and for this reason, a dispute arose between the parties and ultimately, a compromise had been entered in the presence of Ex. Chief Executive Officer Amar Singh Yadav on 20.04.1992; despite of that compromise, the defendant had not complied with the conditions of the compromise; the land which was regularized on the basis of the compromise was requested to be partitioned in the equal share amongst the parties and a decree was requested to be passed accordingly; on this request, vide order dated 07.01.2004, the Court concerned had passed a preliminary decree partitioned the land in question as mentioned in para No.4 of the plaint and appointed Advocate Suresh Kumar Shah to be Commissioner for the purpose of partition. Thereafter, Advocate Suresh Kumar Shah gave his report on 27.02.2004 for partition and that fact has been mentioned in the file. Along with the report, the Commissioner had also produced a map. The Commissioner had recommended the portions of the land in question to the different parties. Being aggrieved against the Commissioner's Report, the defendant had filed his objections which was replied to by the learned counsel for the plaintiff. Arguments were heard by the Court. 3. During the course of arguments on the objections, learned counsel for the defendant stated that before proceeding for site visit, the date was not informed to the defendant and without giving any notice, the report of the Commissioner was prepared which is not acceptable. The Commissioner had produced a notice dated 16.02.2004 which was given to the defendant and the report was prepared on 18.02.2004. It was contended on behalf of the defendant that the land was not equally partitioned. It was lastly prayed on behalf of the defendant that the report of the Commissioner may not be accepted and proceedings for partition of the land may be initiated afresh. While refuting the fact of not giving the notice, it was prayed on behalf of the plaintiff that the report of the Commissioner is right and therefore, the objections raised by the defendant may be rejected and final decree may be passed. 4. The learned Trial Court heard both the parties and it was admitted that the land was partitioned amongst the parties measuring 32 x 55 square feet each; it was also admitted that the pucca construction had been raised by the plaintiff and, therefore, it was held that the defendant has no share in the pucca construction. The report of the Commissioner appears to be appropriate. 5. The report of the Commissioner appears to be appropriate. 5. By the impugned judgment and decree, the learned Trial Court has passed the final decree on the basis of the Commissioner Report in the manner that the enclosed map shall be treated to be the part of the final decree and it was ordered the portions of the property, as mentioned in the map and report of the Commission shall be given to the plaintiff and the defendants as per its partition, measurements and demarcations. 6. It was ordered by the learned Trial Court that portions marked C, D, E & F measuring 32 x 55 total 1760 square feet as shown in the map would go in the share of the plaintiff Gamna Ram; that the portions marked D, F, G & H measuring 32 x 55 total 1760 square fees, as shown in the map, would go in the share of defendant - Sopa Ram and on the portion marked F & D, as shown in the map, both the parties shall construct a joint wall on their cost. 7. For ready reference, the order dated 27.07.2004 is reproduced herein as under:- 8. Heard learned counsel for the appellant as well as learned counsel for the respondent at length and perused the impugned judgment and decree as well as scanned through the entire record of the case. 9. Learned counsel for the appellant, without going into any other controversy, stated that construction made on the joint property is always considered to be as part and parcel of the joint property and no one can be considered to be the exclusive owner of the said property because whatever one invest with open eyes with the joint property, the same will be deemed to be accretion to the joint property and when occasion arises for partition of the same then the same is always divided in equal shares to the joint co-parceners and here in the present case also the preliminary decree for specific terms mentioned 10. Court has ignored to consider the fact that the Commissioner had no business to decide the rights of the parties and also to allot specific share to the respective parties. 11. Court has ignored to consider the fact that the Commissioner had no business to decide the rights of the parties and also to allot specific share to the respective parties. 11. On the contrary, learned counsel for the respondent stated that it is an admitted position that pucca construction between the portions C, D, E, F was constructed by plaintiff-respondent and that is why that portion was correctly given in the share of plaintiff-respondent and another portions D, F, G, H having equal size i.e. 32 X 55 feet which is equivalent to 1760 square feet has rightly been given to the defendant-appellant. He further stated that earlier one settlement was arrived at between the parties and by mutual consent, it was mutually decided that Rs.75,000/-will be paid by plaintiff-respondent to the appellant-defendant as the difference amount of the valuation of the property and cheque of the same amount was prepared on 05.10.2021 but due to some reason final compromise couldn't be executed between the parties. This fact was not controverted by learned counsel for the respondent-plaintiff and on the contrary, they have provided copy of the cheque bearing No.898698 dated 05.10.2021. Lastly, he stated that impugned judgment and decree passed by learned trial Court is correct and no interference is called for and in alternative, matter may be decided as per compromise amount settled between the parties out of the Court. 12. Having regard to the facts and circumstances of the case and after perusal of the record and evidence of both the parties, it is an admitted position that in preliminary made between the portions C, D, E & F has come in the share of plaintiff-respondent Gamna Ram which was constructed by plaintiff-respondent himself and, prima facie, it reveals that value of that portion is higher than the other portions D, F, G & H due to kucha construction. 13. It is also the settled position of law that the construction made on joint property is always considered as part and parcel of the joint property and no one can claim his exclusive ownership on the said property on the ground that construction was raised by him but this fact was ignored by learned trial Court. 13. It is also the settled position of law that the construction made on joint property is always considered as part and parcel of the joint property and no one can claim his exclusive ownership on the said property on the ground that construction was raised by him but this fact was ignored by learned trial Court. In the considered opinion of this Court, learned trial Court has also erred in overlooking the fact that it is not the duty of the Commissioner to decide that which of the specific share would go to the plaintiff or defendant; he can only authorise to propose the partition in two equal share and it is duty of the Court to decide that which of the share will be the share of plaintiff and which of the portion will be the share of defendant. Since parties are living in their respective portions and land was divided in two equal share, i.e., 32 X 50 equivalent to 1760 square feet and difference is only with regard to the nature of construction and size of constructed area. It is also not disputed that pucca construction was raised by plaintiff-respondent, therefore, it is just and proper to allocate this area under the ownership of plaintiff-respondent. Since valuation of property increased by that construction, the suit seeking partition of property will be decided by dividing the property in two equal share as per market value. 14. Therefore, looking to the particular facts and circumstances of the case and cheque bearing No.898698 dated 05.10.2021 of Rs.75,000/-was handed over to the appellant-defendants, in the interest of justice, this appeal is partly allowed and impugned judgment and decree passed by learned trial Court modified up to the extent that defendant-appellant is entitled to receive Rs.75,000/-, as the difference of cost due to the Pucca construction made on the portion came in the share of plaintiff, along with interest @ 6% from 05.10.2021 within a period of two months. If the amount is not paid within a period of two months, appellant-defendant will be entitled to receive Rs. 75,000/- with interest @ 9% of till the date of actual realization. 15. The appeal is disposed of accordingly.