Mahendra Kumar Kochar S/o Shri Jaskaran Kochar, vs Surendra Kumar Kochar S/o Shri Jaskaran Kochar,

The instant first appeal has been filed by the appellantdefendant against the judgment and decree dated 25.1.2007 passed by the Court of

Additional District and Sessions Judge, Fast Track No.3, Bikaner (hereinafter referred to as ''the learned court below'') in Civil Original Suit

No.253/2005 whereby the learned court below passed a preliminary decree of partition in favour of respondent-plaintiff.

Brief facts of the case are that the respondent-plaintiff filed a suit for partition of his residential house situated at Kochran Chowk, Bikaner. The

respondent-plaintiff stated in the plaint that the said residential house is a property of joint ownership of parties, which was purchased by them

through a registered sale deed dated 18.6.1979 in consideration of Rs.48000/-. In the North side of the said house, a bara of Chhagan Lal

Kochar, South side house of Moolchand Kochar and in the East side a room of Rikhab Chand Kochar and in West side of the said plot a lane are

situated. It was stated that after purchasing the said house both the parties have repaired and maintained the house while bearing the expenditure

jointly. It was stated that since the appellantdefendant was the elder brother, therefore, the original sale deed was kept by him on the consent of the

respondent-plaintiff. It was further averred that on personal bonafide necessity, the respondent-plaintiff requested the appellant-defendant for

partition of the property but in vain. It was stated that in this regard a notice dated 7.4.2003 was also sent to the appellantdefendant but the

appellant-defendant specifically refused to do so on 21.4.2003. The respondent-plaintiff prayed that a decree of partition of the suit property may

be passed and exclusive possession of the half share of the property be ordered to be given to him.

The appellant-defendant filed written statement and denied all the contents of the plaint. It was stated that the property in question was

purchased by his father Shri Jaskaran Kochar out of the money received after selling ""Stridhan"" of his mother as well as by taking some lone to

purchase the property. It was stated that the property was purchased by Shri Jaskaran Kochar who was the Karta of the Joint Hindu Family and

the property was also purchased for use and occupation of the members of the joint Hindu family. It was stated that the respondent-plaintiff had no

means to purchase the said property at that time. It was stated that as a matter of fact, with the view to keep harmony in the family Shri Jaskaran

got entered the name of respondent-plaintiff in the sale deed. It was stated that apart from the parties to the suit, there are three sons and six

daughters of Shri Jaskaran and, therefore, all the heirs are having 1/11 share in the property and, therefore, the property cannot be partitioned.

In rejoinder, the respondent-plaintiff submitted his additional plea. It was stated that the ""Stridhan"" of his mother was sold by his father Shri

Jaskaran long back. It was stated that after completing his studies in the year 1968, the respondentplaintiff started supporting the business activities

of his father and thereafter, in the year 1976, he went to Calcutta for business. It was stated that he never remained unemployed after completion

of his studies and, therefore, he had sufficient means to pay the consideration of the property. It was stated that the other siblings were having no

interest and right in the property and, therefore, they are not necessary party to the suit.

On the basis of pleadings of the parties, the learned court below framed the following issues:- ""VERNACULAR MATTER OMITTED

The learned court below decided the issue No.1 in favour of respondent-plaintiff and issues No.2 and 3 against the appellant-defendant and

passed a decree on dated 25.1.2007 in favour of respondent-plaintiff holding that respondent-plaintiff is entitled to half share of the property in

question and directed the commissioner to make a report of partition of the suit property. Being aggrieved with the judgment and decree dated

25.1.2007, the appellant-defendant has preferred the instant first appeal before this Court inter alia praying that the impugned judgment and decree

may be declared illegal and same may be quashed and set aside and the suit may be dismissed.

Heard learned counsel for the parties and perused the material available on record.

Mr. Vikash Balia, learned counsel for the appellantdefendant has contended that the impugned judgment and decree passed by the learned

court below is ex-facie illegal and against the settled proposition of law. The conclusion of learned court below is running contrary to the pleadings

and material available on record. It is contended that the learned court below has committed a grave error in deciding the issues No.2 and 3

against the appellant-defendant. The evidence and material available on record were not properly appreciated by the learned court below. The

appellant-defendant Mahendra Kumar Kochar (DW-1) in his affidavit as well as during his cross-examination has specifically stated that the said

property was purchased by the Karta of the family Shri Jaskaran out of the money received from the sale of Stridhan of his mother. At the time of

purchase of the property, the respondent-plaintiff had no means of proper livelihood and therefore, he was not in a position to pay the amount of

consideration. The witnesses specifically denied that half of the amount of the consideration was paid by the respondent-plaintiff. The father of the

respondent-plaintiff took a loan for purchasing the said property. Therefore, the house in question is a joint Hindu family undivided property.

It is further contended that the respondent-plaintiff has failed to produce any document so as to establish that he was having sufficient means of

paying the amount of consideration at the time of purchase of the said property. The appellantdefendant has satisfactorily established that the said

house was purchased by the Karta out of the money received by selling the Stridhan of his mother as well as while taking loan from Bansi Lal

Kochar and Shri Paras Mal Setia. The suit property was undivided hindu property purchased by the Karta out of the money taken of loan for the

use and occupation of the family and the learned court below has ignored the said important aspect of the matter.

It is contended that the appellant-defendant has satisfactorily established that the house in question was a joint undivided property of hindu

family and, therefore, the members of the family were having equal share in the suit property. It is contended that the property being purchased by

Karta Shri Jaskaran in a capacity of Karta Khandan was for use and occupation of the family members. It is also contended that since the other

brothers and sisters were not impleaded party in the suit, the suit is not maintainable. There is no material available on record to establish that the

property in question was a jointly owned property of the respondent-plaintiff and appellantdefendant.

It is further contended that the learned court below has failed to appreciate evidence available on record in its true perspective and

consequently failed to decide the real controversy involved in the case. It is contended that after purchase of the said house, the same was used by

all the family members of Shri Jas Karan Kochar. The respondent-plaintiff stated that his all the three brothers and six sisters along with the parents

were residing in the same house. His parents died in the suit property and the marriage of all the brothers and sisters were also organized in the said

house. Therefore, the other brothers and sisters were necessary party to the proceedings and the judgment and decree impugned in this appeal is

not sustainable in the eye of law.

It is further contended that learned court below has not considered an important aspect of the matter that the respondentplaintiff''s suit is not

maintainable against the appellant-defendant as he had no cause of action to claim partition of the suit property from the appellant-defendant. It is

contended that the appellantdefendant was not in exclusive possession of the suit property as a co-owner. After purchase of the said property all

the family members of late Shri Jas Karan Kochar were having possession of the suit property. The appellant-defendant was having possession of

the suit property along with the respondent-plaintiff and other brothers and sisters as a member of joint Hindu family of his father Jas Karan

Kochar. At the time of filing of the suit, the property in question was in possession of the joint hindu family of Jas Karan, therefore, the respondent-

plaintiff had no legal right to get the said property partitioned from the appellant-defendant and to compel the appellant-defendant to deliver the

possession of half portion of the house.

It is also further contended that the respondentplaintiff in his plaint and affidavit has specifically stated that he has contributed for half

consideration for purchasing the suit property and the rest half part was paid by the appellantdefendant. The appellant-defendant in his written

statement as well as in his affidavit has specifically stated that the house was purchased from the Joint Hindu family income.

In view of aforesaid arguments, learned counsel for the appellant-defendant has prayed the present first appeal may kindly be allowed and the

impugned judgment and decree passed by the court below may kindly be quashed and set aside.

On the other hand, Mr. Sanjay Nahar, learned counsel for the respondent-plaintiff has opposed the contention raised by learned counsel for

the appellant-defendant and has supported the impugned judgment and has submitted that no error has been committed by the learned court below

while passing the impugned judgment and decree as the same has been passed after appreciating and scrutinizing the material available on record.

Therefore, it is prayed the present first appeal may kindly be dismissed.

Heard learned counsel for the parties and perused the record as well as the judgment passed by the learned trial court.

Upon perusal of record, it reveals that in the case in hand, it is admitted that the disputed house was purchased by the appellant and

respondent jointly by way of registered sale deed dated 18.6.1979 (Ex.1) for consideration of Rs.48,000/-. It is also admitted that for payment of

consideration of Rs.48,000/-, one bank draft of Rs.24,000/- of United Commercial Bank, K.E.M. Road Branch, Bikaner on 16.6.1979 and

another draft of Rs.24,000/- of United Commercial Bank, City Branch, Bikaner was given by the parties separately and according to the sale deed

Ex.1 the possession was also handed over to the parties jointly.

Upon perusal of evidence of plaintiff, Surender Kumar PW-1 in his examination in chief he stated all the facts which have been narrated by him

in his plaint. Upon cross-examination by the defendant, the plaintiff has clearly stated that ""VERNACULAR MATTER OMITTED

Paras Mal (PW-2) who is Mama of the parties and Heera Lal Kochar who is uncle of the parties has supported the version of the plaintiff and

clearly stated that the disputed house was purchased by both the parties by their self income. Paras Mal (PW-2) in his examination in chief clearly

stated that:-

On behalf of defendant, nothing has been asked in cross-examination about above statement of PW-2, therefore, the statement given by Paras

Mal (PW-2) in his examination in chief stands unrebuted.

Heera Lal (PW-3) also in his examination in chief has clearly stated that :- ""VERNACULAR MATTER OMITTED

Upon perusal of cross-examination of Heera Lal (PW-3) it reveals that statement which was given by the witness in his examination in chief is

unrebuted in cross-examination.

In view of the above discussion of evidence of the plaintiff, it proves that the plaintiff has succeeded to prove in the trial court by his oral and

documentary evidence that disputed house was purchased by the plaintiff and respondent by equal share and possession was also handed over by

the seller to the plaintiff and defendant jointly at the time of execution of sale deed (Ex.1). It is also proved by the evidence of the plaintiff that

father of the plaintiff and defendant did not give any amount for purchase of the disputed house and mother of the plaintiff and defendant also did

not give any Stridhan for purchase of the disputed house.

The defendant Mahender Kumar (DW-1) in examination in chief narrated all facts which were stated in his written statement but in cross-

examination, he stated that :- ""VERNACULAR MATTER OMITTED

In cross-examination, the Defendant Mahender Kumar (DW-1) failed to show any date for sale of Stridhan of his mother. He stated that for

the purpose of purchase of the said disputed house, his father took a loan of Rs.17,000/- from Banshilal and Rs.10,000/- from Parasmal Sethia,

but Parasmal Setia, who was examined as plaintiff witness PW-2, nothing was asked to Parasmal Sethia in his cross examination about this fact

that father of plaintiff and defendant Jaskaran took a loan of Rs.10,000/- for the purpose of purchase of this house and Banshi Lal has not been

examined on behalf of defendant in Court, despite this, the defendant No.1 has not disclosed any date or month regarding taking loan. Upon

perusal of evidence, the defendant has failed to prove that the disputed house was purchased by joint hindu family income. Apart from this, the

version of the plaintiff is supported by the witnesses Paras Mal (PW-2) and Heera Lal (PW-3) who are also relatives of both the parties. In cross-

examination, nothing has come on record which can prove that Paras Mal (PW-2) and Heera Lal (PW-3) are interested witnesses for plaintiff,

despite version of the appellantdefendant is not supported by any of the witnesses. In these circumstances, the learned trial court has rightly

disbelieved the statement of Mahender Kumar Kochar (DW-1).

It is admitted that Ex.1 sale deed was executed in favour of the plaintiff and defendant and possession was also handed over to them. It is

settled proposition of law that title of the property will be vested in favour of the party in whose favour the sale deed was executed.

In my considered view for the purpose of proving the sale it is not necessary for the parties to prove that how he arranged the consideration of

sale deed.

In my considered view, if any member of joint hindu family has purchased any property by his self-acquired income, then such property will be

his personal property. If there is intention of the members of joint hindu family to include such property in joint hindu family, then purchased

property may be the property of joint hindu family.

The contention of learned counsel for the appellant that all the members of joint hindu family are residing in disputed house, therefore, all the

members of the family who are residing in the disputed house are necessary party and at the time of purchasing the disputed house, the plaintiff was

also a member of joint hindu family, therefore, disputed house is joint hindu family property, is not tenable because in view of the above discussion

the disputed house has been purchased by the plaintiff and the defendant by their personal income. The brothers and sisters of the parties are living

in disputed house with permission of the plaintiff, therefore, they are not entitled to take any share and they are not necessary party in the suit.

Upon perusal of record, it reveals that the learned trial court has neither misread any evidence nor overlooked any evidence available on

record. The finding of trial court is based on the pleadings of the parties and evidence available on record as well as based on provisions of law.

In view of above discussion, the learned trial court has not erred in believing the evidence of the plaintiff and disbelieving the evidence of

defendant and has rightly decided the issue No.1 in favour of the plaintiff and issues No.2 and 3 against the defendant and has rightly decreed the

suit, therefore, no interference by this Court is called for in judgment and decree passed by the learned trial court in the instant first appeal. The

same is, therefore, dismissed. The stay petition also stands disposed of. No order as to costs.