R.S.A.No. 3405 of 2008 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 3405 of 2008 (O&M)
Date of decision: 3.7.2009
Vijay Kumar and another
......Appellants
Versus
Jeewan Lal and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.B.R.Mahajan, Advocate,
for the appellants.
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SABINA, J.
Plaintiffs Jeewan Lal, Amit Kumar and Rama Rani filed a
suit for partition by metes and bounds by way of separate possession
of plot measuring 169 square yards. The suit of the plaintiffs was
decreed by the Civil Judge (Jr.Divn.) Amritsar vide judgment and
decree dated 18.9.2006. Aggrieved by the same, defendants Vijay
Kumar and Roshan Lal filed an appeal and the same was dismissed
by Additional District Judge, Amritsar vide judgment and decree
dated 26.7.2008. Hence, the present appeal by the defendants.
Brief facts of the case, as noticed by the Additional
R.S.A.No. 3405 of 2008 (O&M) 2
District Judge, Amritsar in para Nos. 2 to 6 of impugned judgment,
are as under:-
“It is the case of the plaintiffs that Ashok Kumar son
of Roshan Lal and Predecessor-in-interest of the
plaintiffs along with defendant No.1 purchased the
property vide registered sale deed dated 16.4.93 for
sale consideration of Rs.20,000/- from Raj Kumar
and Suresh Kumar sons of Amritsaria Ram of
Verka, tehsil and District Amritsar. During his life
time, Ashok Kumar constructed one shop and a
godown in the property in dispute as he was doing
the business of Hardware, tyres and tubes etc. and
was running the shop therein. On 19.6.98 Ashok
Kumar died intestate. After his death, the plaintiffs
are the only legal heirs of deceased Ashok Kumar,
they are therefore, entitled to one half share out of
the property in dispute. However, after the death of
Ashok Kumar, defendants have turned the plaintiffs
out of their house forcibly in three wearing apparels
and the plaintiff Rama Rani is presently living along
with plaintiffs No.1 and 2 with her parents. Since
the defendants were not admitted the claim of
plaintiffs and were not prepared to partition the
property, to give the due share of the plaintiffs to
R.S.A.No. 3405 of 2008 (O&M) 3then, hence the necessity has arisen to file the
present suit.
3. Plaintiffs brought this suit for partition by way of
metes and bounds of plot N o.1046 more fully
detailed and described in the heading of the plaint.
4. As plaintiffs No.1 and 2 are minors, the suit has
been filed though their mother Rama Rani, plaintiff
No.3 and natural guardian.
5. The suit has been resisted by defendants. In the
written statement filed by defendants No.1 and 2,
several preliminary objections have been raised on
the grounds of maintainability , valuation of suit etc.
On merits, it has been denied if Ashok Kumar and
defendant No.1 purchased the property in question
vide sale deed dated 16.4.2003 for a consideration
of Rs.20,000/-. According to the defendants, Ashok
Kumar was physically handicapped. He was having
very weak eye sight and was not able to do any
work. The property was purchased by his father
Roshan Lal defendant No.2 along with defendant
No.1 for a sale consideration of Rs. 20,000/- from
Raj Kumar and Suresh Kumar son of Amritsaria
Ram. The entire sale consideration was contributed
by defendant No.2 from his own pocket and nothing
R.S.A.No. 3405 of 2008 (O&M) 4was contributed by Ashok Kumar. It was also
denied if Ashok Kumar during his life time had
constructed one shop and a godown in the property
in dispute. It has further been denied if Ashok
Kumar was doing any business in the shop. In fact,
the shop was being run by defendant No.2 under
the name and style of R.L.Hardwara Store from the
very beginning in the capacity of a tenant under
defendant No.1 at a monthly rental of Rs.100/- and
defendant No.2 had been paying the rent regularly
to defendant No.1. The entire construction on the
plot has been raised by defendant No.1. It has also
been denied if the plaintiffs are the only legal heirs
of Ashok Kumar. According to the defendants,
Seeta Devi, mother of Ashok Kumar is also one of
the Class-I legal heirs. Other averments made in
the plaint have been denied and in the end, a prayer
for dismissal of the suit has also been made.
6. In a separate written statement filed on behalf of
defendant No.3, it has been pleaded that the
replaying defendant being the mother of deceased
Ashok Kumar is also one of the legal heirs of Ashok
Kumar and is entitled to share of Ashok Kumar in
equal share along with the plaintiffs.
R.S.A.No. 3405 of 2008 (O&M) 5
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiffs are entitled to partition
by metes and bounds by way of separate possession as
prayed for? OPP
2. Whether the plaintiffs are entitled to
permanent injunction as prayed for? OPP
3. Whether Ashok Kumar son of Roshan Lal and
defendant No.1 have purchased the property in dispute
vide registered sale deed dated 16.4.1993? OPP
4. Whether the plaintiffs are only leagal heirs of
deceased Ashok Kumar? OPP
5. Whether the suit of the plaintiffs is not
maintainable?
6. Whether the plaintiffs have come to the court
with clean hands ? OPD
7. Relief. “
After hearing learned counsel for the appellants, I am of
the opinion that the present appeal deserves to be dismissed.
The case of the plaintiffs was that Ashok Kumar had
purchased the suit property along with Vijay Kumar-defendant No.1
vide sale deed dated 16.4.1993 for valuable consideration of
Rs.20,000/- from Raj Kumar and Suresh Kumar. Ashok Kumar
constructed one shop and godown in the property in dispute and was
R.S.A.No. 3405 of 2008 (O&M) 6
running his business. However, Ashok Kumar died on 19.6.1998 and
hence, plaintiffs being his legal heirs were entitled to half share in the
suit property. Plaintiffs were, however, thrown out of the property in
dispute by the defendants. The case of the defendants, on the other
hand, was that Ashok Kumar was a physically handicapped person
and was having weak eye sight. Property had been purchased by
defendant No.2 along with defendant No.1 for a sale consideration of
Rs.20,000/- from Raj Kumar and Suresh Kumar. The entire sale
consideration was contributed by defendant No.2 Roshan Lal, father
of Ashok Kumar.
The parties are closely related to each other. The
execution of the sale deed in question is not much in dispute. The
dispute is only as to whether the sale deed had been executed by the
vendors in favour of Ashok Kumar and Vijay Kumar-defendant No.1
or in favour of Roshan Lal-defendant No.2 along with defendant
No.1. Both the Courts below have held that the sale deed Ex.P-1
clearly shows that the property in question was purchased by Ashok
Kumar and Vijay Kumar sons of Roshal Lal. Apparently, after the
death of Ashok Kumar, dispute has arisen between the plaintiffs, who
are the widow and minor children of deceased Ashok Kumar, and
defendants. The plea taken by the defendants that defendant No.2
was a tenant in the suit property was not substantiated on record. In
fact, defendant No.1 himself stated that Roshan Lal was sitting on
the suit property as his father and not in any other capacity. It has
R.S.A.No. 3405 of 2008 (O&M) 7
also been noticed by the learned Additional District Judge, Amritsar
that Vijay Kumar-defendant No.1, while appearing in the witness box
as DW-6 had admitted that he was ready to give half share in the suit
property to the plaintiffs.
In these circumstances, no interference is warranted by
this Court.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
July 03, 2009
anita