Chander Parkash Malhotra vs R.B.S. Chahal and Another

Jawahar Lal Gupta, J.—On 1st December, 1993 V.K. Jhanji, J. while dismissing Regular Second Appeal No. 2666 of 1984 (Shri Chander Parkash Malhotra v. Shri R.B.S. Chahal and Anr.) had inter alia directed that "the trial Court should determine the market value and give option to the appellant to purchase the share of the added respondents. In case he fails to do so within the time that the trial Court may allow for the purpose, the added respondents be allowed to pay the price of the share of Chander Parkash appellant". In pursuance of this direction, the trial Court vide its judgment dated 22nd March, 1995 fixed the market value of the property in dispute at rupees twenty lacs. A decree was accordingly passed. The respondent initiated proceedings for execution of that decree. While the proceedings were pending, an application for amendment of the decree was filed. The Court ordered the amendment of the decree vide its order dated 3rd February, 1996. Chander Parkash had filed an appeal against the judgment and decree dated 22nd March, 1995. On the amendment of the decree, he prayed for permission to amend the grounds of appeal. The request was accepted. The amended grounds of appeal were taken on record. The matter was considered by the Additional District Judge, Chandigarh. Vide order dated 30th April, 1996, the appeal was dismissed. Hence this second appeal.

Shri Viney Mittal, learned counsel for the appellant has made a two-fold submission. Firstly, it has been contended that the Courts below have erred in fixing the market value of the property in dispute at rupees twenty lacs. Secondly, it has been contended that the judgment and decree are not in conformity with the directions given by this Court in the order dated 1st December, 1993 inasmuch as the trial Court had not given option to the appellant to purchase the share of the added respondents by specifically passing an order for making the deposit of the assessed price within a specified time.

It is the admitted position that the property in dispute consists of a one kanal house No. 50, Sector 10-A, Chandigarh. It is also not disputed that the learned trial Court has assessed the value of the house in March, 1995. It is also not disputed that the value of the property in Chandigarh is continuously on the rise. In view of this situation, Shri Ajay Tiwari, counsel for the respondents has very fairly stated that since the appellant is aggrieved by the price as fixed by the learned trial Court, he may be given the choice to fix the price as of today and the respondents be given the option to either sell the 7/8th share that they own or to buy the 1/8th share of the appellant. He further submits that the respondents shall be equally satisfied if they are given the option to fix the price and the appellant is given the choice to either buy their share or to sell his share. The appellant is present in person. He has informed his counsel that he is neither willing to purchase at the market value which may be fixed today nor he is willing to sell at the market price of today. He states that the option should be given to him at the price of rupees twenty lacs as initially fixed.

Undeniably, the factual position is that even though the respondents own 7/8th share of the property, they are not in possession. The appellant though only owner of l/8th share is in possession of the whole property and is not paying any rent what-so ever to the respondents. It is also not disputed that the appellant''s father had expired in the year 1973. The appellant has continued to be in possession of the property in dispute since then without paying a penny to anyone. The litigation has been prolonged on one pretext or the other since then. Even today, the appellant''s attitude is that he should continue to be in possession. He claims a right to buy the property on the price as it prevailed in March, 1995. Indisputably, the prices have risen considerably during the last about two years. The learned trial Court has found that the price of the plot in the year 1990 was in the region of rupees fifteen lacs. In September, 1996, a one kanal plot in Sector 33 was auctioned for an amount of rupees eighty three lacs. In a sector which was further away from the center of the town, viz. Sector 40, a similar plot fetched a price of rupees forty four lacs. It is undoubtedly correct that when plots are sold by auction, the price has to be paid in yearly instalments. On account of the fact that the payment has to be made in a certain period of time, the price is higher than that which would be payable in a case where the payment has to be made immediately. Yet, it is apparent that the price fetched by a plot in Sector 33 was rupees eighty three lacs. In fact, after the improvement of the situation in Punjab, the prices of plots in Chandigarh have risen considerably. Resultantly, it can safely be said that the value of the property in dispute today is much higher than what it was in March, 1995. In this situation, it is not surprising that the respondents had willingly deposited an amount of rupees 2-1/2 lacs in the executing Court as the price of the 1/8th share of the appellant . Still further, keeping in view the stubborn and adamant attitude of the appellant and in order to put an end to the litigation, Shri Tiwari has very fairly though reluctantly stated that the value of the property is not less than rupees sixty lacs and that the respondents are willing to deposit the value of l/8th share viz. of rupees 7-1/2 lacs for payment to the appellant. Shri Tiwari states that an amount of -rupees 2-1/2 lacs having already been deposited by them in the executing Court, they can deposit the remaining amount of rupees five lacs within such time as the Court may fix. Shri Mittal has again spoken to the appellant. He states that he is not willing to buy at this price. The result is that the appellant shall neither part with! the property nor with the money.

After hearing counsel for the parties at considerable length and on examination of the evidence on record, it is clear that the valuation as fixed by the Court in the year 1995 was not at all excessive. If at all, the Court had taken a conservative view and fixed the value at a level lower than the actual. It is further clear that the respondents who have purchased and are owners of 7/8th share of the property are being continuously denied its use and occupation. The appellant who has only 1/8th share in the property continues to remain in possession. Still further, the appellant is not willing to either buy or sell at today''s price. Even otherwise, the appellant had not produced any evidence to show that he was possessed of the means to pay the price even at the value as assessed by the Court in March, 1995. In view of this situation, there is no equity or justice in favour of the appellant. It appears that he is only trying to take undue advantage of the fact that the trial Court had not specifically mentioned that the appellant had the option to purchase or sell the property within a specified time. It may also be noticed that vide order dated 8th June, 1995, the executing Court had called upon the appellant to make the deposit on 25th July, 1995. In spite of the grant of time of more than six weeks, the appellant had not made the deposit. This fact further shows that the effort was only to delay and not to have the matter decided,

Taking the totality of circumstances into consideration, no ground for interference in the appeal is made out. It is, accordingly, dismissed. It is a case for the award of compensatory costs especially because the appellant has kept the respondents out of possession of the premises even though they own 7/8th share. However, token costs of Rs. 10,000/- are awarded to the respondents.