Dismissed

Banwari Lal Mohan v. Rulia Ram Mohan

Punjab & Haryana HC29 Feb 2012RSA/2181/2011

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal challenging a partition decree. Rejecting the claim of perversity, the Court held that the courts below were not obliged to re-appreciate evidence under Section 100 CPC. The appellant failed to substantiate the plea of forgery or explain the identity of the owner against whom adverse possession was claimed.

What did the court decide?

The second appeal was dismissed; no specific order made below was altered.

Banwari Lal Mohan Vs Rulia Ram Mohan — Partition | Punjab & Haryana HC (2012)

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RSA No.2181 of 2011 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.2181 of 2011 (O&M)

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Date of Decision: February 29, 2012

Banwari Lal Mohan

.......Appellant

Versus

Rulia Ram Mohan

.......Respondent

CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA

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Present: Mr.Vijay Rana, Advocate for the appellant.

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TEJINDER SINGH DHINDSA, J.

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CM No.6051-C of 2011

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This is an application seeking condonation of delay of 18 days in re-filing the present second appeal. The application is duly supported by an affidavit of Tilak Raj, Clerk of learned counsel appearing for the appellant.

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For the reasons stated in the application, the prayer is allowed. Delay of 18 days in re-filing the appeal is condoned.

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CM disposed of.

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RSA No.2181 of 2011

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4 . The defendant-appellant is in second appeal before this Court.

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Briefly stated, the plaintiff filed a suit for separate possession by way of partition of his 1/2 share in the suit property. It was pleaded that the suit property, which consisted of one shop and Chobara (Ist floor

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RSA No.2181 of 2011 (O&M)

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residence), was inherited by the plaintiff as also the defendant from their father Gurdas Ram. Gurdas Ram was stated to have purchased a plot vide sale-deed dated 30.11.1974 for a sale-consideration of Rs.99/-. The suit property is the joint ownership of the plaintiff and the defendant as the same devolved upon them on account of the registered Will executed by their father late Gurdas Ram in their favour. The plaintiff had instituted the present suit as he wanted his share separated so as to enjoy the portion which was to fall to his share.

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The defendant contested the suit and set up a plea that the saledeed dated 30.11.1974 was a forged and fabricated document. It was further stated that vendees Sohan Lal and Mohan Lal from whom Gurdas Ram was alleged to have purchased the suit property were, in fact, never the owners therein. The defendant stated that the suit property is comprised in khasra No.246/1 and measures 01 marla and that he came into possession of the same in the year 1974 and had raised certain construction thereupon and was using the same for the business of sale of grocery. The defendant claimed that his possession of the suit property was continuous, hostile without any objection and was, as such, adverse to the true owner and had ripened into ownership.

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The trial Court framed the following issues based on the pleadings of the parties:

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Whether Gurdas Ram purchased the suit property from Sohan Lal and Mohan Lal, vide sale deed dated 30.11.1974, for a sum of Rs.99/-? OPP

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Whether the plaintiff is entitled to the partition of the suit property?OPP

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RSA No.2181 of 2011 (O&M)

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Whether the suit is not maintainable in the present form?OPD

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Whether the plaintiff has no locus standi to file the present suit? OPD

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Whether the present suit is not properly valued for the purpose of court fee and jurisdiction?OPD

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Whether no cause of action has accrued to the plaintiff to file the present suit?OPD

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Relief.

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After having heard respective counsel for the parties and having scanned the evidence led on record, the suit of the plaintiff was decreed in his favour and against the defendant for possession by way of partition of 1/2 share of the suit property. The first Appellate Court has dismissed the appeal preferred by the defendant-appellant and has thereby affirmed the judgment and decree of the trial Court.

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I have heard Mr.Vijay Rana, learned counsel for the appellant

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at length.

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Learned counsel would contend that the Courts below have mis-read the evidence led on record and as such, the findings recorded are perverse inasmuch as the sale-deed dated 30.11.1974, Exhibit P2, relied upon by the plaintiff-respondent was a forged and fabricated document.

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The validity and the correctness of the sale-deed dated 30.11.1974, Exhibit P2, as also the Will, Exhibit P4, and holding the same to be proved in accordance with law would essentially be a finding of fact. So far as the sale-deed is concerned, PW2 Satish son of Piare Lal has proved the signatures of late Piare Lal on the sale-deed dated 30.11.1974. PW4 and PW5 were the attesting witnesses in respect of the Will, Exhibit

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RSA No.2181 of 2011 (O&M)

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P4, who were duly examined and as such, the Will also has been held to be duly proved in accordance with law. The defendant-appellant inspite of having raised a plea that the sale-deed, Exhibit P2, was a forged and fabricated document, led no evidence whatsoever in support and corroboration of such assertion. Learned counsel has not been able to show any mis-appreciation and mis-reading of evidence in this regard so as for this Court to hold the findings of the Courts below to be perverse.

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Learned counsel would further contend that an application under Order 26 Rule 9 of the Code of Civil Procedure for appointment of Local Commissioner for demarcation of the suit property had been allowed and the Field Kanugo was appointed as a Local Commissioner who had tendered into evidence his report as Exhibit D13. It is the contention of the learned counsel that the Courts below had not correctly appreciated such report, Exhibit D13, as the same would clearly reflect that the suit property in respect of which the suit had been filed by the plaintiff-respondent, was not the same as the one covered under sale-deed, Exhibit P2. Such argument raised by the learned counsel merits rejection on two counts, firstly, the trial Court has clearly recorded a finding that the site plan which is a part of the sale-deed, Exhibit P2, and the site plan, Exhibit D15, which was filed along with the report of the Local Commissioner would reflect that the suit property is the same in both the site plans. Secondly, in terms of the provisions contained in Order 26 Rules 9 & 10 of the Code of Civil Procedure, the Court undoubtedly has ample power to appoint a Local Commissioner. Such Local Commissioner after making an inspection, as he deems necessary, and after reducing into writing the evidence taken by him,

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RSA No.2181 of 2011 (O&M)

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shall return such evidence, together with his report in writing signed by him, to the Court. There is no bar as regards appointment of Local Commissioner without first issuing notice to the other side. Even the exparte appointment of a Local Commissioner who, in turn, may submit his report without issuing notice to the other party would also be permissible in law. However, the clear requirement is that the report of a Local Commissioner would not become admissible or for that matter cannot be relied upon unless such Local Commissioner is examined in Court giving adequate opportunity to the other party to cross-examine him. In the facts of the present case, a report by the Local Commissioner had been merely submitted, but no opportunity to cross-examine him had been afforded to the plaintiff-respondent. As such, mere exhibiting such a report could not form a basis to hold that the suit property bears khasra No.246/1.

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That apart, it has been the plea of the defendant-appellant all through that he has become owner in respect of the suit property by way of adverse possession. Apart from having merely pleaded in the written statement to the effect that his possession to be perverse, continuous and without any objection as against the true owner since the year 1974, the defendant-appellant has been totally silent as to who the real owner of the property is. A plea of adverse ownership on the basis of open, hostile, uninterrupted possession as against the true owner without even pleading against whom the present appellant is claiming adverse ownership would certainly not be sustainable.

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I find no basis to interfere with the conclusions and findings recorded by the lower Appellate Court. I find no perversity in the findings

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RSA No.2181 of 2011 (O&M)

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recorded by the Courts below. This Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure, would not enter into an arena of re-appreciation of evidence.

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15 The present second appeal must fail as it does not raise any question of law, much less a substantial question of law.

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The present appeal is, accordingly, dismissed.

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Appeal dismissed.

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( TEJINDER SINGH DHINDSA ) February 29, 2012 JUDGE

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SRM

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Note: Whether to be referred to Reporter? Yes/No

Banwari Lal Mohan v. Rulia Ram Mohan

Case brief

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Banwari Lal Mohan v. Rulia Ram Mohan

Case brief

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