Manish and Others vs Bharat Bhushan and Others

Sanjay Karol, J.

CMP(M) No. 11003/2013

For reasons stated in the application, delay, which has sufficiently been explained, in filing the appeal is condoned. Application stands disposed of.

RSA No. 4029/2013

Appellants have filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 29.11.2012, passed by the learned Additional District Judge, Fast Track Court, Solan, in Civil Appeal No. 2FTC/13 of 2009, titled as Manish and others versus Bharat Bhushan and others, whereby judgment and decree dated 23.12.2008, passed by the Civil Judge (Junior Division), Solan, in Civil Suit No. 1/1 of 2000, titled as Bharat Bhushan versus Manish and others, stands affirmed.

Plaintiff Bharat Bhushan (respondent No. 1 herein) filed a suit for declaration to the effect that he and original defendant No. 1 Laiq Ram were owner in possession of the suit land. Both the plaintiff and defendant No. 1 were occupying the property constructed over the suit land and maintaining their separate residences. However, the property continued to be joint.

Plaintiff prayed for the following reliefs:

That the shares of the parties may be declared and partitioned by making appropriate orders to the Collector or any Gazetted Subordinate of Collector deputed by him and the plaintiff and defendant No. 1 be ordered to be put in separate and distinct possession on the spot by partitioning the suit property by metes and bounds.

That the defendant No. 1 may be ordered to render the accounts regarding the rents received from the tenants and be further directed to pay the share of plaintiff to the plaintiff by passing a preliminary decree and thereafter a final decree for recovery of the share of the plaintiff regarding the rents to the extent of share of the plaintiff in favour of plaintiff and against defendant No. 1.

That the defendant No. 1 may kindly be restrained from collecting the rents from defendant Nos. 2 to 5 and the defendant Nos. 2 to 5 be also restrained from making payment of rent to defendant No. 1 till suit property is partitioned.

That the defendant No. 2 to 5 may be directed to deposit the rent with the receiver appointed by the Hon''ble Court or in alternative, be directed to pay the rent in an account with any nationalized bank or as per the orders passed by the Hon''ble Court.

That the defendant No. 1 may be restrained from asserting any partitioned, changing nature of suit property, causing waste, cutting trees, or doing any such act which is detrimental to the rights of the plaintiff.

Defendant No. 1 denied the property to be jointly owned and possessed by him and the plaintiff.

Based on the pleadings of the parties, trial Court framed the following issues:

Whether the plaintiff is co-owner in joint possession of the suit property to the extent of 2/5th share and defendant No. 1 is co-owner in joint possession to the extent of 3/5th share in the suit property, as alleged?

OPP

Whether the plaintiff and defendant no. 1 are separately occupying the property for the purpose of separate residence and are maintaining the portion being used by them as residents respectively, as alleged?

OPP

Whether the plaintiff has right to have 2/5th rent per month equal to his share from defendants no. 2 to 5, as alleged?

OPP

Whether the defendant is liable to render the account regarding the rent received from the tenants, as alleged?

OPP

Whether the defendant no. 1 has no right to change the nature of the suit property, cause waste, digging, cutting trees from the suit property, as alleged?

OPP

5(a) whether the suit is not properly valued for the purposes of Court fee and jurisdiction?

OPD

5(b) Whether the court has no pecuniary jurisdiction to try the suit?

OPD

Whether the plaintiff has no locus standi to file the suit?

OPD

Whether the suit is bad for non-joinder of necessary parties, as alleged?

OPD

Whether the plaintiff is stopped to file the suit on account of earlier suit having been dismissed as suit no. 195/1 of 1989, u/s 11 CPC, read with Order 2 Rule 2 CPC and Order 9 Rule 8 CPC?

OPD

Whether defendants no. 2 to 5 are living in the premises belonging to defendant no. 1 in the portion which has come to the exclusive possession of defendant no. 1 as per Will of Smt. Satya Wati, the mother of defendant no. 1, as alleged?

OPD

Relief.

Plaintiff''s suit was decreed in the following terms:

In view of my findings on the aforesaid issues, the suit property is held to be joint between the plaintiff and the defendant no. 1. The plaintiff is held entitled to 2/5th share in the suit property while the defendant no. 1 is held entitled to 3/5th share in the suit property. The plaintiff is also held entitled to receive future rent to the extent of 2/5th share from the tenants of the suit property (defendants no. 2 to 5) till it is partitioned in accordance with law. The plaintiff is also held entitled to rendition of accounts of the defendant no. 1 pertaining to the rental income received by the defendant from the suit property from the other defendants i.e. defendants no. 2 to 5, since the year 1991. Further, the defendant No. 1 is restrained from asserting any partition, changing nature of suit property, causing waste, cutting trees, or doing any such act which is detrimental to the rights of the plaintiff till the suit property is partitioned in accordance with law between the plaintiff and defendant no. 1. The suit of the plaintiff is preliminarily decreed accordingly. Decree sheet be prepared accordingly. File after needful be consigned to record room.

Aggrieved thereof, Legal Representatives of original defendant No. 1, who were substituted as parties, filed an appeal, which is also stands dismissed.

The dispute is inter se the present appellants and respondent No. 1. The Courts below have rightly come to the conclusion that the property in question was jointly owned and possessed by the plaintiff and original defendant No. 1. In fact there is admission to the extent that plaintiff''s share in the property was to the extent of 2/5th and remaining 3/5th share belonged to the defendants. The share and the entitlement of the plaintiff in the suit property, as also the rent so received from the tenants, having been established, the trial Court rightly decreed the suit. As such, it cannot be held that findings returned by the Courts below are illegal, perverse and erroneous, warranting interference by this Court. No question of law, much less a substantial question law, arises for consideration in this appeal.

For all the aforesaid reasons, the appeal, devoid of any merit, is dismissed and disposed of, so also the pending application(s), if any.