Des Raj vs Sham Lal (died) through his LRs.

B. Rai, J.—This appeal is by the defendant against the judgment and decree, dated November 13, 1979 of affirmation passed by the learned Additional District Judge, Ludhiana.

Brief facts of the case are that Sham Lal brought a suit for permanent injunction restraining the defendant from interfering in the construction being made by the plaintiff on the first floor of the rooms shown as red in the attached site plan marked ABCD, fully described in the headnote of the plaint, on the allegations that Daulat Ram was the original owner of the house in dispute. After his death, he was succeeded by Sham Lal plaintiff, Des Raj, Nikka Mal, Madan Gopal, Kalu Ram, Om Parkash, Vasdev and Sakhdarshan Kumar in equal shares, A Partition Deed, Exhibit P2, between the parties was reduced into writing on July 21, 1951 and was registered on November 2, 1951. After partition, the parties came into possession of their respective shares. They raised their constructions on the property in their possession. It was further alleged that the area shown as red and the kitchen falling on the eastern side and two rooms marked ''X'' and ''Y'' falling on the eastern side fell to the share of the plaintiff. As per terms and conditions of the Partition Deed, the parties were at liberty to enjoy their respective shares in any way they liked. After the said partition some of the parties, i.e. Om Parkash etc. raised their construction or made improvements without any objection. Plaintiff had also a right to make improvements in the property which fell to his share. Plaintiff wanted to construct one room on the first floor above the ground floor at the site shown as red in plan. In order to raise construction, he got building plan sanctioned from the Municipal Committee, Samrala. It was further pleaded that the material was lying there but the defendant illegally and without any right interfered in his affairs and stopped the plaintiff from raising the construction. The defendant was requested not to interfere in the construction but he did not stop. When the matter was reported to the police, a compromise was effected there. When the plaintiff again tried to raise the construction, he was obstructed by the defendant and on his refusal to desist from obstructing him from raising construction on the properly which had fallen to his share, he filed the suit for permanent injunction.

The suit was contested by the defendant by raising a number of preliminary objections. It was pleaded that the courtyard ABCD where the plaintiff wanted to raise construction is jointly owned by Madan Gopal, Kalu Ram, Om Parkash, Des Raj, Vasdev etc. According to the Partition Deed, dated July 21, 1951, these persons had been using the same jointly. The doors of the house of Kalu Ram also open towards the courtyard in question and if the plaintiff is allowed to raise the construction from the courtyard the doors of Kalu Ram would be blocked. It was also pleaded that there would be obstruction in the passage of the defendant as well. It was also pleaded that suit was bad for non-joinder of necessary parties and the plaintiff was estopped by his act and conduct to file the suit. The correctness of plan attached with the plaint was also denied. On merits, it was admitted that originally Daulat Ram was the owner of the house. On the death of Daulat Ram, plaintiff, defendant and others succeeded to this house. The house was partitioned and Partition Deed was executed on July 21, 1951 and registered on November 2, 1951. He again pleaded that site ABCD where plaintiff wanted to make the construction is a common courtyard which was kept as such at the time of partition. On these grounds, he prayed for dismissal of the suit.

The plaintiff filed Replication, controverted the pleas taken by the defendant and reiterated those contained in the plaint.

The pleadings of the parties gave rise to the following Issues:

(1) Whether the property ABCD is owned and possessed by the plaintiff ? OPP.

(2) Whether the courtyard ABCD is jointly owned by Madan Gopal, Kalu Ram, Om Parkash, Des Raj, Vasdev, Sukhdarshan and Nikka Mal, according to the partition deed dated 27.7.1951 ? OPD.

(3) Whether the door of Kalu Ram''s chobara opens in the courtyard ABCD and is required for passage, if so, its effect ? OPD.

(4) Whether Des Raj defendant has a passage from courtyard ABCD, if so, to what effect ? OPD.

(5) Whether Madan Gopal and others are necessary parties as mentioned in para 1 of the preliminary objections of the written statement ? OPD.

(6) Whether the plaintiff is estopped by his act and conduct? OPD.

(7) Whether the site plan attached with the plaint is correct? OPP.

(8) Whether the plaintiff is entitled to the injunction prayed for? OPP.

(9) Relief.

Oral as well as documentary evidence was led by the parties. Issues 1 and 2 were taken up together, issue No. 1 was decided in favour of the plaintiff and Issue No. 2 against the defendant. Issues 3 and 4 were also taken up together. These Issues were decided against the defendant holding that though both the doors of the chobara open towards the site in dispute but it hardly matters as the portion in their possession can be conveniently used, if the plaintiff makes any construction on his roof ABCD. Issues 5,6 and 7 were decided against the defendant and in favour of the plaintiff. Under issue No. 8, the trial Court observed that under the circumstances, there was no reason as to why the plaintiff was not entitled to the injunction prayed for. Consequently, the suit was decreed.

Des Raj defendant was, however, not satisfied with the judgment and decree of the trial Court and challenged the same in appeal. His appeal, however, was dismissed by the learned Additional District Judge, Ludhiana, affirming the judgment and decree of the trial Court, as indicated in the earlier part of this judgment.

Undaunted by decision of two Courts below, Des Raj defendant has come to this Court in second appeal.

I have heard the learned counsel for the parties and have carefully gone through the record, more particularly Registered Partition Deed, Exhibit P1. One Daulat Ram was the owner of a double-storyed big house in Samrala, District Ludhiana, which after his death was inherited by Nikka Mal and his sons. Nikka Mal had seven sons, namely, Sham Lal, Madan Gopal, Kalu Ram, Om Parkash, Des Raj, Vasdev and Sukhdarshan Kumar. During his life time, Nika Mal partitioned the house and separate shares were given to Kalu Ram, Des Raj, Om Parkash, Madan Gopal and also kept a separate share for himself and other sons, as at that time they were unmarried and were living with him. All the parties took possession of the property which fell to their shares and started living therein. These facts are not disputed. In support of his case, plaintiff filed two site plans with the plaint, one sanctioned by the Municipal Committee, Samrala, vide Resolution No. 10/110 of July 14, 1969 and the other site plan is Exhibit P3. Defendant also filed a site plan Exhibit D1. Perusal of site plans filed by the plaintiff would show that all the details of the properties in possession of different persons have not been mentioned inasmuch the complete description of the portions in possession of Kalu Ram and Des Raj have not been given. Defendant also relied upon a site plan Exhibit D1 in which all the necessary details have been shown. Portions in possession of each of the brothers and their mother Bhagwanti have been depicted in different colours. The trial Court as well as the first appellate Court did not look into the site plan Exhibit D1 while deciding the controversy between the parties and they relied only upon the site plans filed by the plaintiff.

Daulat Ram was the original owner of the house - subject-matter of Partition Deed Exhibit P2. The property of Daulat Ram was inherited by Nikka Mal and his sons. That property was partitioned between himself and his sons Sham Lal, Madan Gopal, Kalu Ram, Om Parkash, Des Raj, Vasdev and Sukhdarshan Kumar. Their shares are specified in the Partition Deed in detail in unambiguous terms and they were put in possession of their respective shares in the property. Dispute is between Sham Lal and Des Raj. Others are residing peacefully in their respective shares. After giving the specified shares to Sham Lal, Madan Gopal, Kalu Ram and Om Parkash, the remaining portion of that building, i.e., a tabela and open spaces mentioned in the Partition Deed without partition were kept by Nikka Mal for himself and his other sons, namely, Des Raj, Vasdev and Sukhdarshan Kumar (Parties No. 6 to 8) who at the time of partition as admitted by the parties, were unmarried and were living with their father Nikka Mal and mother Bhagwanti. It was also stipulated in the Partition Deed that courtyards and staircases were to be used by all the co-sharers in the same manner as they were using them at the time of partition, i.e., as on July 21, 1951. Kalu Ram was given two kothas, each one behind the other and a bath room near a well. In addition to that, roofs of both the abovesaid kothas and sehan near chhatra were given to him. One baithak and one kotha along with the bathroom near the Pipal tree as also another room on the first floor of the said kotha and bathroom fell to the share of Om Parkash.

The contention of the learned counsel for the respondent is that open space on the ground floor can only be described as a courtyard and not the roofs. Therefore, if the rooms under the roofs, in dispute were allotted to the respondent, he has every right to raise construction on the roofs of those rooms which had fallen to his share. Argument is misconceived. The property of each cosharer has been fully described and specified in the Partition Deed. It is clear from the Partition Deed and that if any courtyard on the first floor had fallen to the share of any of the co-sharers, that has been fully described and mentioned therein as is evident from the shares of Kalu Ram and Om Parkash. Only two rooms, each one behind the other, near main stair-case towards the West and a sarvari along with courtyard which is on the back of sarvari opposite main entrance gate of the residential building was given to Sham Lal. Sham Lal was not given any right to use the roofs on his two rooms for raising any construction on them, though he had the right to use the stair-cases and the courtyards whether on the ground or on the roofs. The portion of the building now in dispute between Sham Lal and Des Raj along with other portions of the building were kept by Nikka Mal with himself, Des Raj, Vasdev and Sukhdarshan Kumar. Once it is so specified in the Partition Deed itself, it does not lie in the mouth of Sham Lal to say that he has the right to raise construction on the portion in dispute. A reading of the judgments of the Courts below would show that the Partition Deed was not properly construed which led to arrival at an erroneous conclusion by the two Courts below. In the result, the findings returned by the trial Court and affirmed by the first appellate Court cannot be allowed to sustain. Therefore, the appeal is allowed, the judgment and decree under challenge are set aside. Consequently, the suit filed by Sham Lal is dismissed.

Before parting with the judgment, it may be noticed that during the pendency of the appeal in this Court, an application under Order XLI, Rule 27 of the Code of Civil Procedure, read with Section 151 of the Code for placing on record copy of the plaint, dated November 11, 1982 filed in the Court of Subordinate Judge, Samrala, on behalf of Bhagwan Dass plaintiff against Des Raj in civil suit instituted on November 11, 1982; copy of the site plan; written statement filed by defendant Des Raj and copy of the judgment and decree, dated August 22, 1984 passed by Shri M.L. Malhotra, Additional Senior Subordinate Judge, Samrala, was filed. Under Rule 27 of Order XLI of the Code of Civil Procedure, the parties to an appeal have i no right to produce additional evidence, whether oral or documentary, in the Appellate Court. However, the parties may be allowed to do so in the contingencies provided under Sub-rule (1) and when additional evidence is allowed to be produced by the Appellate Court, the Court has to record the reasons for its admission. Sub-clause (aa) of Sub-rule (1) of Rule 27 of Order X-LI of the Code provides that the party seeking to produce additional evidence has to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. In the instant case, the applicant has neither pleaded nor has established in any manner that despite the exercise of due diligence, the documents now sought to be produced were not within his knowledge or could not be produced by him at the time when the decree appealed against was passed. The Appellate Court may call upon the parties to produce some document or any witness if the Court is unable to pronounce the judgment on the basis of the evidence already on record or for any other substantial cause. In the case in hand, evidence already adduced by the parties available on the record is sufficient to pronounce the judgment and the Court does not need any additional evidence to enable itself to pronounce the judgment.

For the reasons stated above, the application under Order XLI, Rule 27 of the Code of Civil Procedure, is dismissed.