Brij Mohan Bajaj vs Krishan Kishore Bajaj and Others

L.N. Mittal, J.

CM No. 7119.C of 2009

Allowed as prayed for.

CM No. 7120.C of 2009

Allowed as prayed for subject to all just exceptions.

RSA No. 2407 of 2009

Plaintiff Brij Mohan Bajaj having remained unsuccessful in both the courts below has filed the instant second appeal.

Plaintiff-appellant and defendant-respondent No. 1 are real brothers. Indra Wati defendant No. 2 since deceased was their mother. Defendants No. 3 to 6 (proforma respondents No. 2 to 5 herein) are sisters of appellant and respondent No. 1.

Plaintiff alleged that suit property built on khasra Nos. 3063, 3066 and 3070 min along with other property was owned by Bishan Dass Bajaj father of plaintiff and defendants No. 1 and 3 to 6 and husband of defendant No. 2. He died on 8.2.1986. Plaintiff and defendants No. 1 and 2 constituted Joint Hindu Family with Bishan Dass Bajaj as Karta. Defendants No. 3 to 6 stood married and are residing in their matrimonial homes. On the death of Bishan Dass Bajaj, Joint Hindu Family came to an end. Properties owned by Joint Hindu Family were divided by oral family settlement dated 10.3.1986 and the parties took possession of their respective properties. The suit property fell to the share of plaintiff who is in exclusive possession thereof partly himself and partly through tenants. A shop fell to the share of defendants No. 1 and 2 who are in possession thereof and are running business therein. A residential house is still joint of plaintiff and defendants No. 1 and 2 in which plaintiff has 1/3rd share. There is also some land at Haridwar which was also joint of plaintiff and defendants No. 1 and 2. Defendants to. 3 to 6 were given their share by way of cash and jewellary. Making these averments, plaintiff sought declaration that he is owner in possession of the suit property. Relief of injunction was also claimed.

Defendant No. 1 while admitting relationship between the parties controverted the other plaint allegations. It was denied that suit property was Joint Hindu Family property. It was alleged that there was no Joint Hindu Family. Bishan Dass was owner in possession of the suit property and other property and bequeathed the same among his heirs vide Will dated 2.8.1985. Defendant No. 2 also bequeathed her estate vide Will dated 11.1.1991. Suit property is owned and possessed by defendant No. 1 but one private godown No. 3 and 4 in the said property was occupied by the plaintiff and was bequeathed to him and Indra Wati by Bishan Dass. Some other pleas were also raised.

Defendants No. 3 to 6 also controverted the claim of the plaintiff. It is pleaded that Bishan Dass died intestate and his property including suit property had been inherited by his natural heirs i.e. the plaintiff and the defendants in equal shares. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Amritsar vide judgment and decree dated 23.9.2006 dismissed the plaintiff''s suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Amritsar vide judgment and decree dated 16.5.2009. Feeling aggrieved, the plaintiff has filed the instant second appeal.

I have heard learned Counsel for the appellant and perused the case file.

Learned Counsel for the appellant vehemently contended that two rent notes executed by tenants of part of the suit property in favour of plaintiff depict exclusive possession of the plaintiff/appellant over the suit property. The contention is completely untenable. Mere execution of rent notes by the said tenants in favour of the appellant would not depict exclusive possession of the appellant over the suit property because the said rent notes have no adverse bearing against the defendants who are not party thereto. Appellant could easily procure said rent notes in connivance with the tenants.

Appellant has miserably failed to prove that suit property was Joint Hindu Family property. In fact the plaintiff-appellant pleaded that Bishan Dass was owner of the suit property. Even otherwise, the suit property is not proved to be Joint Hindu Family property in the hands of Bishan Dass predecessor of the parties.

Appellant has also failed to prove the alleged oral family settlement dated 10.3.1986. Even otherwise, plaintiff''s version regarding alleged family settlement is intrinsically and inherently unreliable. According to the plaintiff''s version he became owner of the suit property which is very big property whereas defendants No. 1 and 2 jointly were given only one shop which is just nothing as compared to the suit property. Defendant Nos. 3 to 6 were allegedly given cash and jewellary for which also there is no evidence. Defendants No. 3 to 6 could not be deprived of their share in the property left by their father. Moreover, if there had been division of properties among the parties as claimed by the plaintiff, there is no reason why residential house at Amritsar and the land in Haridwar was kept joint in the hands of the plaintiff and defendants No. 1 and 2 only. Thus, examined from any angle, plaintiff has no case and he has been rightly non-suited by the courts below.

There is concurrent finding by both the courts below based on appreciation of evidence and supported by cogent reasons. The said finding cannot be said to be perverse or illegal in any manner so as to call for interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine.