Ram Piari vs Hukkam Devi and Others

N.K. Kapoor, J.

1.This is defendant''s appeal against the judgment and decree of the Additional District Judge reversing in appeal the judgment and decree of the trial Court whereby the suits of the plaintiffs were ordered to be dismissed.

Briefly put, Radha Kishan and one Sawan were owners of the shop in dispute. Radha Kishan mortgaged his share of the shop on 9.4.1992 for Rs. 343/- with Sh. Ali Baksh but he remained, in possession thereof as a tenant under mortgage. The suit filed by Radha Kishan for redemption was decreed on 1.12.1947 and in execution proceedings be obtained possession on 27.4.1948. According to the case of the plaintiffs, on the death of Radha Kishan, they have succeeded to the estate of deceased being his daughters. According to the plaintiffs, Charan Dass defendant No. 2 is in wrongful possession of the shop in dispute and the vacant site since 27.6.1983. It is further the case of the plaintiffs that Sawan Ram died issueless and Smt. Ram Piari is not the heir of said Sawan. The defendants contested the ''suit controverting the allegations made in the plaint. By way of preliminary objection, it was stated that the plaintiffs have no locus standi to file the present suit as they are not daughters of Radha Kishan; that the suit is not within limitation; that the defendants are in possession of the property; and that the suit is bad for non-joinder of necessary parties.

On the pleadings of the parties, following issues were framed:-

1/ Whether the plaintiffs have locus standi to file the present suit? OPP

2/ Whether Radha Kishan was the owner of the suit property? OPP

3/ Whether the suit is within time? OPP

4/ Whether the suit is bad for misjoinder of necessary parties? OPD

5/ Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP

6/ Whether the plaintiffs are entitled to the possession as prayed for? OPP

7/Relief

Issues No. 2 to 5 were decided in favour of the plaintiffs whereas issues No. 1 and 6 were decided against the Plaintiffs. Consequently, the suit of the plaintiffs was dismissed.

Findings on issues No. 2, 4 and 5 were not pressed before the appellate Court and so these were affirmed. The lower appellate Court on reappraisal of evidence came to the conclusion that it is fully proved that the plaintiffs are daughters of Radha Kishan whose property is in dispute, so the plaintiffs have a locus standi to file the suit. Since it had been held by the trial Court that Radha Kishan was owner of the property in dispute, so the suit of the plaintiffs was decreed as prayed for.

At the motion hearing, both the counsel expressed their desire for disposal of the appeal at the motion hearing and so the record of the Court was summoned as well and the matter was listed for disposal. Learned counsel for the plaintiffs argued that it is the case of the plaintiffs that the property in dispute was owned by Radha Kishan and Sawan. The present appellant had laid claim to be heir of Sawan and thus succeed to his share in the property, yet neither any issues had been framed as to the precise status of the appellant nor any finding his been returned as to who succeeds to the share of Sawan in the property. This way the Court has erred in law in not properly framing the issues which arise out of the pleadings of the parties and in the absence of proper and material issues, the impugned judgment and decree of the lower appellate Court is unsustainable, in law. The counsel further argued that the case set up by the appellant is that she has inducted Charan Dass to be her tenant, yet no clear finding has been given by the Court in this regard. There is also no clear evidence on record for the assertion of the plaintiff that Radha Kishan was put in actual possession of the premises in dispute on 27.4.1948. In any case, the possession of a co-owner cannot be termed to be without any right and such a person can only be dispossessed if property is ultimately partitioned.

Learned counsel for the respondents, on the other hand, argued that it is amply proved on record that Radha Kishan mortgaged the properly to one Ali Baksh and he got it redeemed on 22.1.1948 and in pursuance to this he was put in possession of the property. The plea of tenancy now set up is merely to harass and deprive the respondents of their valuable right to possession and enjoy its fruits. The lower appellate Court on reappraisal of evidence has come to the conclusion that the property had been redeemed and in pursuance of the warrant of possession, Radha Kishan was put in possession of the property. Since Radha Kishan was put in possession of the prorperty in 1948 and continued to be in occupation of the property during these years, the possession of Charan Dass cannot be termed to be authorised and so the Court rightly passed a decree for possession.

I have heard learned counsel for the parties as well as perused the pleadings of the parties and other documents referred to by the respective counsel. It is file case of the plaintiffs that Radha Kishan and Sawan were owners of two shops and the adjoining open site situate at Amritsar. It is further the case of the plaintiffs that Radha Kishan mortgaged his shop to Sheikh Ali Baksh for an antecedent debt of the sum of Rs. 343/- but remained in possession of whole of the property and hence after redemption of the property, Radha Kishan remained in occupation of the same as owner till his death on 7.2.1979. It is some time in the year 1983 that Charan Dass defendant No. 2 forcibly occupied the shop as well as the vacant site and set up a claim that he is a tenant at will under Smt. Ram Piari wife of Sita Ram, s/o Kishan Chand. Separate written statements have been filed by defendants No. 1 and 2. Smt. Ram Piari made an emphatic assertion that she has succeeded to the estate of Sawan and has inducted Charan Dass as a tenant. To prove her relationship with Sawan, a pedigree table was reproduced in para No:9 of the written statement which if proved makes her an heir of Sawan Ram. Unfortunately, the Courts below did not care to dilate upon this matter and so the same remains undecided. Defendant No. 2 in his reply has claimed himself to be in lawful possession of the property. In any case, defendant No. 2 sinks or swims with Smt. Ram Piari. Vide decree sheet Exhibit P-2 the suit of Radha Kishan was decreed. A perusal of this document reveals that Radha Krishan had filed a suit for redemption of 1/2 share in the shop as detailed in the plaint situate within the municipal limits of Amritsar town. Smt. Santi W/o Sawan was arrayed as defendant No. 2. To this extent, there is no dispute between the parties. Similarly, vide document Exhibit P-4, the decree is stated to have been executed on 27.4.1948 This also refers to 1/2 share of the plaintiff-decree holder in the property subject matter of the suit. On perusal of these documents, one cannot infer that actual possession was delivered to Radha Kishan or that he was already in possession of the shop and the site as stated in the plaint. Thus, the Courts below have not expressed any opinion with regard to the status of Smt. Ram Piari nor to the assertion of the plaintiffs that on redumption of the property, the same remained in exclusive possession of Radha Kishan till his death in the year 1979. In the absence of any clear finding recorded by the Courts below, any conclusion arrived at would be highly hazardous and can easily be termed to be conjectural. The Court below ought to '' have framed a specific issue with regard to the claim set up by Smt. Ram Piari as to whether she succeeds to the states of Sawan and also whether Radha Kishan was in actual possession of the suit property .on redemption of the same and whether he continued to be in occupation of the same till his death in the year 1979. It is thereafter that the claim of Charan Dass that he is the alleged tenant under Smt. Ram Piari can be examined appropriately by the Court. The findings on the proposed issues will have a material bearing upon the issues already determined.

Accordingly, I accept the appeal, set aside the judgment and decree of the Courts below under Order 41 Rule 23-A of the CPC and remand the case to the trial Court to frame all issues which arise out of the pleadings of the parties including issues with regard to status Of Smt. Ram Piari as well as induction of Charan Das as tenant as alleged; permit the parties to adduce evidence on these issues and thereafter decide the case without any further delay within six months from the receipt of the file. Parties to appear before the trial Court on 5.1.1996.