ASHOK KUMAR GOEL vs RAM NIWAS GOEL

This regular second appeal is instituted against the judgment and decree dated 07.01.2008 rendered by learned Civil Judge (S.D.), Dehradun in

Original Suit No.382 of 2004 as well as judgment dated 30.04.2009 rendered by learned Additional District Judge, 5th Fast Track Court, Dehradun, in

Civil Appeal No. 05 of 2008. Â

Key facts, necessary for adjudication of this regular appeal, are that the appellant-plaintiff (hereinafter referred to as ‘plaintiff’ for

convenience and brevity sake) filed a suit for partition against the respondent-defendant (hereinafter referred to as ‘defendant’ for convenience

and brevity sake). According to the averments made in the plaint, the defendants are the brothers. The disputed property was purchased by the

parties on 23.12.1976. The nature of the property is commercial as well as residential. The plaintiff suffered a severe heart attack in the year

1999. Thereafter, he again suffered second heart attack in the year 2002. The defendant has started raising construction on the property in dispute.

The plaintiff objected to the same. The defendant also approached the police. He served a legal notice on the defendant on 26.06.2004. The defendant

filed a written statement. He admitted that the parties were brothers. The oral partition had already taken place long back. They have got their

respective shares and are in possession of the same. The property was bought by the defendant and his father late Sadhu Ram on 07.08.1976 for

consideration of Rs.68,500/-. The final payment of Rs.17,500/- was made by the defendant. The map was got approved in the year 1982. The entire

property was partitioned. It was an oral partition. The replication was filed by the plaintiff.

The Trial Court framed the issues. The suit was dismissed by the learned Trial Court on 07.01.2008. The appeal filed by the plaintiff/appellant was

also dismissed by the First Appellate Court on 30.04.2009. Hence, this regular second appeal. Â

The regular second appeal was admitted on the following substantial question of law on 29.07.2009: -

“Whether the act on the part of the counsel (Sri J.M. Singhal) who appeared earlier on behalf of appellant (plaintiff) in the suit and thereafter the

said counsel appeared on behalf of respondent at the stage of first appeal, vitiated the entire proceedings before the first appellate court?â€​

As far as framing of substantial question of law, at the time of admission of the regular second appeal, is concerned, it is not even a question of law.

It could, at the most, be a case of professional misconduct and that too was required to be proved. In view of this, parties were permitted to

advance the arguments on the issues arising from the pleadings and the oral and documentary evidence led by the parties qua partition.Â

I have heard learned counsel for the parties and gone through the judgment and record very carefully.

Learned counsel appearing on behalf of the appellant has vehemently argued that the Trial Court has not correctly appreciated the oral as well as

documentary evidence which led to the miscarriage of justice. Learned counsel for the respondent has supported the judgments dated 07.01.2008 and

30.04.2009.

The plaintiff has appeared as PW1 before the Trial Court. He led his evidence by way of filing the affidavit. According to his affidavit, the plaintiff

was claiming partition only in respect of the property bearing no.4 New Road, Dehradun. It was residential and commercial in nature. He had suffered

a heart attack in the month of March, 1999. He was hospitalized. He again suffered with the heart attack in the year 2002. The defendant started

raising construction and made false representations to the M.D.D.A., Dehradun. He served legal notice to the defendant on 26.06.2004. He was cross

examined. In his cross examination, he submitted that he was working in a medical store. He has not paid any tax. No partnership deed of Goel

Medical Shop was ever prepared. He categorically admitted in his cross examination that initially, it was a joint family but now they are living

separately. He has categorically admitted that there was oral family settlement. Both the brothers sat together and no third party was involved. On the

basis of oral settlement, the partition has taken place. He has requested his brother to reduce the same to the writing but his brother did not agree to it.

PW2 Smt. Sudesh Goyal has also led evidence by way of filing the affidavit. She is the wife of plaintiff. The averments made in the affidavit are

the same which were made by the plaintiff in his affidavit. She was also cross examined. She admitted that the sale took place in the year 1976. Her

husband started running an independent business since 1986.Â

The defendant Ram Niwas Goyal has appeared as DW1. He has filed his affidavit. In Para-11 of the affidavit, he has categorically deposed that

there was an oral partition. In his cross-examination, he has denied that no oral partition has taken place.

The fact of the matter is that the plaintiff himself has admitted that there was an oral partition. Once he has made an admission, he cannot be

permitted to resile out of his admission.Â

Application under Order 41 Rule 27 of C.P.C.

The appellant submits that the arbitration has taken place qua joint Hindu family property and one Inder Singh was appointed as Arbitrator. He made

an award on 29.03.1993. It was made a Rule of Court. It is not believable that the appellant was not aware of the award made in 29.03.1993. The

purpose of Order 41 Rule 27 C.P.C. is not to permit the parties to fill up the lacuna.

 Accordingly, Application (I.A.) No. 2168 of 2012 is dismissed.   Â

Accordingly, there is no merit in the regular Second Appeal and the same is hereby dismissed.Â