Hansraj Batra(Since Deceased)through His Lr Ashok Batra Vs Ashwani Batra and Anr.

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 128 RSA-1048-2023 (O&M) Date of decision: 05.02.2025

Hansraj Batra

...Appellant(s)

Vs.

Ashwani Batra & Another

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...Respondent(s)

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CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:Proxy counsel for Ms.Ra m andeep Kaur, Advocate for the appella n t. *** NIDHI GUPTA, J. CM-4024-C-2023 This is an application under Section 151 CPC fo r

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condonation of delay of 104 days in re-filing the appeal.

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After going through th e contents of the application , which is su p ported by affidavit, the sam e is allowed subject to all jus t exceptions a nd delay of 104 days in r e -filing the present appeal i s condoned.

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MAIN CASE

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The appellant/plaintiff has challenged the concurrent judgments and decrees of the Courts belo w whereby the suit filed by the appellant f o r declaration that he is own e r in possession of the suit property as detailed in the plaint, along with relief of permanent injunction r e straining the defendants fro m alienating or creating any change ove r the suit property, has been d ismissed by both the Courts below.

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SUNENA 2025.02.15 10:07 I attest to the accuracy and integrity of this document

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Brief facts of the case are that the plaintiff filed a suit for declarati o n to the effect that he is own e r in possession of SCO No.97 situated at s h opping Complex, Panipat and s hop No.1126-1127 situated at Ward No.7, Railway Road Panipat (suit pro p erty) on basis of agreementcum-writing dated 03.11.2012; and is en t itled to recover payment of Rs.2,51,000/- along with interest from defendant; and to the declaration that sale d e eds No.703&704 dated 26.04.1999 are illegal; along with consequenti a l relief of permanent injunction restraining the respondents from alienat i ng suit property. 3. The case as set out by t h e plaintiff in the plaint is that the plaintiff s tarted business of furniture in t he year 1962 and he was sole proprietor o f the firm. Then he joined defen d ant No.1 and defendant No.2 as partners i n the firm without any investm e nt by the said defendants and the entire investment in the partnership business was made by the plaintiff. Th e plaintiff was partner in the firm to the extent of 40% share and defend a nts No.1 and defendant No.2 t o extent of 30% each. In the year 2002 t h e firm purchased SCO-97 by t aking loan of Rs.5 lakh. The entire loan w as discharged by the plaintiff. However, the defendant No.1 got the said shop purchased in his own name and told the plaintiff that the said sho p no. 97 had been purchased in the name of the plaintiff. The suit propert y is constituted of SCO-97 whi c h have been purchased from income of plaintiff whereas sale deed have b een got executed in favour of defendant No.1 fraudulently. It is pleaded t hat ultimately to resolve the

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family dispu t e, a family settlement-cum-a g reement took place between parties on 0 3 .11.2012 vide which defenda n ts No.1 and 2 agreed to give SCO No.97 and a sum of Rs.2,51,000/- t o the plaintiff. However, the defendants f ailed to comply with the ter m s and conditions of the said Family Settl e ment which was duly signed b y them, and in fact, wanted to alienate suit property. Hence, present suit.

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4. Upon notice, written sta t ement was filed by defendant

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no.2 who re s isted the suit on several ground s.

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On the basis of pleading s of the parties, following issue s

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were frame d vide order dated 29.05.2015:-

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“1. Whether the plaintiff is enti t led to decree for declaration a s prayed?OPP

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2. Whether plaintiff is entitled t o relief of permanent injunctio n as prayed? OPP

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3. Whether the suit of plaintif f is not maintainable in presen t f orm?OPD

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4. Whether the plaintiff has n o locus standi to file the presen t suit? OPD

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5. Whether the suit of plaintiff is bad for mis-joinder and non j oinder of necessary parties? O P D

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6. Relief.”

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6. Upon considering the p leadings, and the evidence

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adduced by the parties, t he suit of the plaintiff was dismissed by the ld. trial Court v ide judgment and decree dat e d 20.12.2017. The plaintiff’s appeal agai n st the said judgment and decr e e dated 20.12.2017 was also dismissed b y the ld. Additional District Jud g e, Panipat vide judgment and decree date d 29.10.2022. Hence, present se c ond appeal.

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Learned counsel for the a ppellant/plaintiff submits that the plaintiff i s owner in possession of the suit properties on basis of family settlement-cum-writing dated 03.11.2012 a s per which the defendants had agreed to execute and register t h e Sale Deed; and to pay Rs.2,51,000/- in lieu of the claim left by t h e plaintiff in the partnership firm of the plaintiff and the defendants. L earned counsel submits that however, th e defendants have failed to hon o ur the said family settlement dated 03.11.2012; and the defendant No.1 has failed to execute the Sale Deed. It is submitted that the plaintiff ha d led voluminous evidence to prove the F a mily Settlement before the Co u rts below. In fact the learned lower Appellate Court has accepted that th e writing dated 03.11.2012 is a Family Settl e ment. Thus, though the Pla i ntiff has proved the Family Settlement y et the suit of the plaintiff has b e en dismissed. It is accordingly prayed that t he judgments passed by the C ourts below be set aside and the suit filed by the appellant be decreed wi t h costs.

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No other argument is ma d e on behalf of the appellant. 9. I have heard learned c o unsel for the appellant and perused the case file in great detail.

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Learned counsel for th e plaintiff has been at great pains to impress upon this Court that the w riting dated 03.11.2012 was a ‘Family Settlement’ entered into betwee n the parties. However, the writing dat e d 3.11.2012 (Ex.PW2/A) was found to be an ‘Agreement’ between th e parties and not a ‘Family S e ttlement’. Thus, the remedy

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available wi t h the plaintiff was to file a sui t for specific performance and not a suit for declaration. Further, even if t h e document is considered to be a Famil y Settlement then also it is compulsorily required to be registered b e cause it contains recitation o f family settlement. T hus, in either situat i on, the said document dated 3 .11.2012, was required to be registered u n der Section 17 of the Registrat i on Act for it to be given effect to.

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It is the grievance of th e plaintiff that the defendants have failed to honour and/or perform their part of the Family Settlement dated 03.1 1 .2012. To the contrary, thou g h the defendants have not specifically d enied the execution of allege d writing/agreement yet, they have stated in their cross-examination that i t was the plaintiff who has not performed h is part of said agreement. On evidence it was found by the Courts belo w that both parties had failed to honour the terms and conditions of the said Agreement, reducin g it to a mere piece of paper. The family s ettlement/agreement (Ex.PW2 / A) reveals that all the terms and conditions were to be complied with b y parties up to 05.12.2012 but parties did n ot act upon the settlement ever. It remained a piece of writing and w as never complied with. In fac t , it was found that as many as three settle m ents had been entered into b etween the parties. As such, the plaintiff cannot be declared as owne r of SCO-97 on basis of this agreement nor he is entitled to recover any a mount as agreed.

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Further contention of th e plaintiff is that he is owner of SCO-97 and shop No.1126-1127 on the ground that he paid sale consideratio n of said property and registe r ed sale deeds were wrongly executed in f avour of defendant No.1. How e ver, the said contention of the plaintiff is li a ble to be rejected as: a) ther e is no evidence to prove that sale consideration of suit property at time of purchase was paid for by plaintiff; b) S ection 4 of Prohibition of Ben a mi Property Transaction Act, 1988 prohib i ts the plaintiff from claiming title over suit property on the ground that he is the real owner because he paid price of the same; c) Even if it is p resumed that sale consideration of suit property was paid by plaintiff still he cannot claim title over suit p roperty because suit property had been purchased in name of defendant N o.1 by way of registered sale deed.

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Ld. Counsel for the appellant-plaintiff is unable to deny or controver t the above said facts and findings.

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As such, I find no ground is made out to interfere in the well-reason e d judgments of the ld. Court s below. The present appeal accordingly, s tands dismissed.

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Pending application(s) if a ny also stand(s) disposed of.

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05.02.2025 (Nidhi Gupta) Sunena Judge

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Whether speaking/reasoned: Yes/No Whether reportable: Yes/No

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Hansraj Batra(Since Deceased)through His Lr Ashok Batra v. Ashwani Batra and Anr.

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Hansraj Batra(Since Deceased)through His Lr Ashok Batra v. Ashwani Batra and Anr.

Case brief

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