Prem Sukh vs Suraj Bhan and Others

N.K. Kapoor, J.—This is plaintiffs regular second appeal. Smt. Mishri Bai and Smt. Pista Devi filed a suit for partition for separate possession in respect of properties which the plaintiffs and defendants were jointly holding. Prem Sukh and Budhu Mal original defendants 3 and 4 accepted the claim for partition and pleaded that one half of the suit property falling to their share be partitioned accordingly. Bhikha Ram another defendant also admitted the plaintiffs claim as alleged and prayed that his l/6th share of the property be also partitioned. Subsequently, Prem Sukh, Budhu Mal and Bhikha Ram were permitted to be transposed as plaintiffs. The following pedigree table will give the relationship of the plaintiffs and the defendants: -

Sukha @ Ram Sukh |---------------------|----------------|------------------------| Sheonand Rai Giani Ram Dev Karan Dass Nand Ram |------------------------------------|-------------------------| Mohan Ram Bhagat Ram MankuMal |-----|---| |-------------|------------| Prem Sukh Budhu Mal Janki Mool Bhikha Ram Dass Chand Parvati Suraj @ Palri Bhan |-----------------|-----------------| Misri Wd/o Devki Parshad Pista Wd/o Manohar Lal 2. The suit was contested by Mool Chand-defendant. According to him plaintiff had no concern with the suit property whatsoever. He claimed exclusive ownership of the property on the plea that the same was acquired by him alone.

On the pleading of the parties the following issues were framed:-

(1) Whether the property in suit is jointly owned by the plaintiffs and the defendants, if so in what shares? OPP.

(2) Whether the plaintiffs father Janki Parshad had predeceased his father Mangat Ram, if so what effect? OPD.

(3) Whether the plaintiffs are in possession of any part of the property in suit, if not what effect? OPP/D.

(4) Whether the suit is properly valued for purposes of Court fee and jurisdiction? OPP.

(5) Whether the suit as framed is not maintainable? OPD.

(6) Relief

Trial Court on the basis of evidence came to the conclusion that item No. 1 to be the joint property of the parties. Item Nos. 2,3,4 and 5 were also held to be joint property of the parties. Item No. 6 was held to be exclusive property of Mool Chand and Bhikha Ram sons of Baghat Ram. As regards item Nos. 7 and 8 it was stated that since these plots are attached to the residential havelis so their fate would follow to that of other major items of the property i.e. havelis mentioned above. Item No. 9 was held to be joint property. Trial Court under issue No. 2 held that Smt. Mishri Bai and Pista Devi do not have any share in the property and that Prem Sukh Dass and Budh Mal plaintiffs are entitled to 1/4th share each from the line of Manku Mal and Mohan Ram. Similarly, Bhikha Ram and Mool Chand are entitled to l/4th share each from the tine of Bhagat Ram. Both the parties feeling dissatisfied filed appeals before the Additional District Judge.

Additional District Judge once again examined the matter. Primarily the contest revolved around issue No. 1 - as to whether the property in suit is jointly owned by the plaintiffs and the defendants, if so in what shares ? The lower appellate Court once again examined the evidence led by the parties with regard to their exact share in the joint holding. Appellate Court on reappraisal of the evidence came to the conclusion that Smt. Mishri Bai and Pista Devi who were daughters of Smt. Parti have no share in these properties because their father Janki Parshad predeceased his father Bhagat Ram and so they were not entitled to inherit the estate of Janki Parshad. The Court further noticed that in fact Smt. Mishri Bai and Smt. Pista Devi did not prefer any appeal against the judgment and decree of the trial Court and from this angle also the judgment had attained the finality. Examining the share of the other contending parties Court came to the conclusion that the property would now devolve upon Mool Chand,Bhikha Ram and Prem Sukh to the extent of 1/3rd share each. The Court further held that these persons shall share the residential house known as Haveli Chanchalwali appearing at serial No. 1 of the plaint accordingly. Examining the items No. 2, 3, 4 and 5 the Court came to the conclusion that Prem Sukh and Budhu Mal have nothing to do with these properties and these have to be equally shared by the legal representatives of Mool Chand and Bhikha Ram. In respect of property mentioned at serial No. 4 it was held that all shall share equally. In respect of property at serial No. 6 it was held that legal representative of Mool Chand and Bhikha Ram will share to the extent of 1/2 share each. With regard to the property at serial No. 8 the same was to follow the fate of the residential havelis adjacent to these properties. With regard to the property described at serial No. 9 of the plaint it was held that 1/2 share will go to Prem Sukh and Budhu-Mal on one hand and the remaining half to the legal representatives of Mool Chand and Bikha Ram.

The grievance of the plaintiff is that the lower appellate Court despite having come to the conclusion that the various properties are jointly to be shared between Prem Sukh and Budhu-Mal on one hand and Bhikha Ram and legal representatives of Mool Chand on the other hand as somehow while deciding the matter in respect of property mentioned at serial No. 1 had ordered that the same shall devolve upon Mool Chand, Bhikha Ram and Prem Sukh to the extent of 1/3rd share each thereby excluding Budhu Mal altogether. According to the counsel, this finding of the lower appellate Court is unsustainable on the ground that as per narration of facts it was never intended to exclude Budhu Mal from his share in the joint holding. It appears to be an omission on the part of the lower appellate Court. Support was sought from the conclusion of lower appellate Court in respect of property mentioned at serial Nos. 6 and 9 where the Court has held Budhu Mal to be entitled to l/4th share in these properties. In addition to this the learned counsel urged that lower appellate Court has erred in law in reversing the decision of the trial court in respect of properties mentioned at serial Nos. 2, 3, 4 and 5 for no valid reason.

Learned counsel for the respondent has raised two preliminary objections (i) that R.S.A. No. 1351 of 1979 against the judgment of Additional District Judge having been dismissed by this Court on 3.9.1979; now precludes the Court from examining this case as any such recourse is likely to result in passing a contradictory order; otherwise too impugned judgment and decree having merged in the judgment and decree of this Court; the matter cannot be examined independently by the decision in R.S.A. No. 1351 of 1979. Secondly, Budhu Mal has not filed the appeal and so no relief can be granted to him. Appellant also cannot make any grievance as his share has been enhanced i.e. from 1/4 to 1/3 in the joint ancestral property. The counsel further argued that the lower appellate Court on carefully perusing the documentary as well as oral evidence has come to the conclusion that properties mentioned at serial Nos. 2,3 and 5 were the self acquired properties of Bhagat Ram/Mool Chand and so the Court rightly held that the plaintiff/plaintiffs have no claim in respect of these properties and so the appeal deserves to be dismissed.

I have heard the learned counsel for the parties, perused the impugned judgments of the Courts below as well as some of the documents referred to by the respective counsel during their submissions. The relationship of the parties is dear from the pedigree table reproduced in the earlier part of the judgment. This is otherwise also not disputed by the contending parties. S/Shri Prem Sukh and Budhu Mal have succeeded to the estate of Manku Mai/Mohan Ram whereas Bhikha Ram and Mool Chand succeeded to the property left by Bhagat Ram. Thus, as regards the ancestral property i.e. the property which ever has come from Sukha @ Ram Sukh or Dev Karan Dass is to be shared equally between successors in interest of Mohan Ram on one hand and Bhagat Ram on the other. Examined thus there is no manner of doubt that both these lines have to share the properties 1/2 and 1/2. Examined so, the conclusion of the lower appellate Court that Mool Chand, Bhikha Ram and Prem Sukh will share equally i.e. l/3rd each in respect of property mentioned at serial No.1 in the plaint is unsustainable. Name of Budhu Mal appears to be a mere omission else no justification has been advanced by the lower appellate Court as to why the claim of Budhu Mal has not been accepted or whatever was awarded by the trial Court has been taken away. I also take support from the judgment of the Additional District Judge while examining the other properties mentioned at serial No. 9 of the plaint. This property has been held to be ancestral property and ordered to be shared to the extent of 1/2 share by Prem Sukh, and Budhu Mal on one hand and legal representatives of Mool Chand and Bhikha Ram on the other. Accordingly, I am of the view that Prem Sukh, Budhu Mal, Bhikha Ram and legal representatives of Mool Chand will share the ancestral properties equally i.e. 1/4th share each. Present is a suit for determining the shares of the parties and for petitioning the same. Only a preliminary decree was passed by the trial Court and the final decree is yet to follow. To meet the hypertechnical objection two courses are open to the court. One is to accept the appeal and remand the matter to the lower appellate Court for a fresh decision, in view of the glaring error committed by the Court, secondly, to examine the matter on merits and pass an appropriate order invoking the provisions of Order 41 Rule 33 CPC. In view of the clear facts on record remanding the case is not likely to serve any purpose except delaying the suit which is already pending before the Courts for the last more than 23 years. So, by invoking the powers in terms of Order 41 Rule 33 CPC, I am of the view that it is a fit case where while setting aside the judgment and decree of the lower appellate Court appropriate relief be granted to all the parties concerned. This provision specifically empowers the Court to grant any appropriate relief to a party who has not filed an appeal against the impugned decree. The other objection of the counsel for the respondent is also devoid of any substance. Admittedly no notice had been issued by the Court and so any such decision cannot be taken to be binding upon the parties. At best such a decision merely precludes the person whose appeal has been dismissed from agitating against the impugned order afresh. Otherwise too, this is again a hypertechnical objection and so finding no substance is overruled. Resultantly, it is held that Prem Sukh and Budhu Mal shall have l/4th share each whereas legal representative of Mool Chand and Bhikha Ram will have l/4th share each in the properties which have been held to be joint properties of the parties, having come from the common ancestors. Conclusion of the lower appellate Court with regard to the nature of these properties is, however, affirmed. Appeal is accordingly accepted, setting aside/modifying, the judgment and decree of the lower appellate Court.

Parties to bear their own costs.