Tirath Ram vs Mohan Lal

S.S. Sudhalkar, J.—This is an appeal by a plaintiff who was unsuccessful in both the courts below. The appellant-had filed suit No. 69 of 14.2.1977 in the Court of Sub Judge IInd Class, Ballabgarh contending therein that he is the owner of the house in dispute and that he had purchased this house from the Government of India, Ministry of Rehabilitation Vide sale deed dated 28.7.1961 (Ex.P.1) and that by virtue of the same he was the sole owner of the property in dispute and that the defendant Mohan Lal (predecessor in title of the present respondents) who was his real brother had no right, title or interest in it. Mohan Lal was allowed to use and occupy the said portion as a licensee and that he was bound to vacate the same as and when the plaintiff wanted to vacate the same.

The Courts below had not accepted the contentions of the plaintiff because there is another document on record Ex.D3 which is a certified copy of the sale deed in which along with the name of the plaintiff, the name of the father of the plaintiff is also written as a purchaser. The crux of the whole case is whether from the document annexure P/1, the name of the father of the plaintiff is removed subsequently. Another aspect to be considered will be whether the change could have been effected by the authorities after the sale deed Ex-P1 was issued in the name of the plaintiff alone and then to consider the alternative argument of the property being of Joint Hindu Family.

The case of the defendant is that Parma Shah who was father of the plaintiff and deceased-defendant was allowed the adjustment of the compensation claim to the extent of Rs. 2810.65 against the sale consideration of the house in question and the rest of the sale consideration i.e. Rs. 29.97 was paid in cash. It is averred that because of a clerical mistake the names of Parma Shah and the plaintiff were inserted as purchasers though in fact Parma Shah alone was the owner of the suit property. The other contentions are regarding gift deed being executed by Parma Shah in favour of the defendant-deceased.

It was argued on behalf of the plaintiff-appellant that though the sale certificate Ex.P1 was issued in the name of the plaintiff alone, the name of father of the plaintiff was subsequently got written along with his name and, therefore, his father had not acquired any right in the suit property. Before proceeding further, it may be mentioned that the suit property was sold by the document executed on behalf of President of India and the amount of Rs. 2810.65 was by adjustment against the compensation payable under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the property was placed as a displaced person. Sub-Rule (8) of Rule 91 of the Displaced Persons (Compensation and Rehabilitation) Rules is as under:

"Where any property purchased by any person under this rule and the full purchase price has been paid by him or adjusted against the compensation as provided in sub-rule (5) a deed of transfer shall be executed in the form specified in Appendix XXIV or XXV, as the case may be.

If the tenderer is a displaced person and has associated with himself any other displaced person having a verified claim whose net compensation is to be adjusted in whole or in part against the purchase price, the deed of transfer shall be made out jointly in the name of all such persons and shall specify the extent of interest of each in the property."

In this case, it has been contended by learned counsel for the respondents that by clerical mistake the name of the plaintiff alone was entered and thereafter it was amended and the name of the father of the parties i.e. plaintiff and deceased-defendant i.e. Parma Shah was mentioned along with the plaintiff but subsequently the plaintiff erased the name of his father from the document. It is interesting to see that after the name of the plaintiff written with ink on the cyclostyled document, there is some erasure visible to the naked eye. The document was executed on 28.7.61 and the certified copy of the same was issued on 12.7.62 i.e. much prior to the filing of the suit. Moreover evidence to that effect has also been led before the trial court. The plaintiff has been examined as P.W.I. He stated in his deposition that he was allotted House No. I-H-17 and Ex.P1 is the sale deed of the same. In his cross-examination, he has stated that he had purchased a house out of the share paid to him from the claim of Rs. 2800/- which his father had received. If this statement was correct, then the whole of Rs. 2810.65 has been a part of the consideration in addition to the cash amount of Rs. 29.97. The father of the plaintiff and defendant-deceased was examined as D.W.2. He has stated that he and Bhagwan are the owners of House No. 1-H-17, and that they have purchased the said house in claim. He has also stated that the plaintiff had not made any payment towards that house and that the registration, was in his name and that of the plaintiff. In cross-examination, he has stated that it is incorrect that the plaintiff has given an amount of Rs. 29.81 in cash.

D.W.4 Chhabil Dass is the Clerk of Rehabilitation Department, Faridabad. He has stated in his deposition that Parma Shah had filed an application to the effect that how the registration was sent in the name of Tirath Ram i.e. the plaintiff whereas the money has been adjusted in his account (Parma Shah), and on the basis of said application they had sent a letter in the office of Sub Registrar on 27.11.1961 and informed him that the registration deed had been issued in the name of Tirath Ram which had already been registered on 3.11.1961 and the name of Parma Shah had been left out Gautam Parkash Duggal, Managing Officer, Department of Rehabilitation, Faridabad was examined as D.W.5. He has stated in his deposition that on 27.11.1961 they had sent a letter to the Sub-Registrar, Ballabgarh which is marked as Ex.DW5/2, and that he came to the office of the Sub-Registrar, Ballabgarh and that after taking permission of the Sub-Registrar showed the said letter and added the name of Parma Shah (Sahay) in the records of Sub-Registrar on which he put his signatures. He has also stated that he added the name of Partna Shah (Sahay) on the original records as well as on the copy of the same and put his signatures. He has also stated that Ex.P1 was issued by their office and that it was written by their office and that he had written the name of Parma Shah in it which has been erased. Tirath Ram PW1 again examined on 27.3.1978 when he has stated that his father Parma Shah had taken the house in question from Rehabilitation Department in the capacity of a Karta (manager) of Joint Hindu Family and that thereafter his father effected partition amongst them, the four brothers. He has also stated that his father had admitted that whenever he would get the claim, he would give its share to all of them. He (father) purchased a plot in Punjabi Colony for his brother Mohan Lal and gave Rs. 7500/- in cash to Dwarka Nath after selling front portion of House No. 1-H-16. His father constructed a room in House No. 1-H-16 and gave it to his third brother Kidar Nath. He has also stated in his cross-examination that at the time of filing of the suit, he had disclosed the fact of partition to his counsel. The story of partition is subsequently taken up in the above deposition.

Learned counsel for the appellant has argued that the appreciation of facts by the courts below is not properly made. It was argued before the lower appellate court that the application, copy of which is Ex.DW5/l, was given by Parma Shah to the Managing Officer to the effect that as the claim got adjusted against sale consideration of the suit property was joint property of himself, and his sons and wife, the deed was to be executed in his favour and not in favour of the plaintiff and that a letter was written to Sub Registrar on 27.11.1961 by the Managing Officer, copy of which is Ex.DW5/2, that he name of Parma Shah be added in the sale deed as purchaser of the suit property, the lower appellate court held that the sale deed Ex.P1 was executed initially in favour of the plaintiff exclusively in respect of the house in question on 28.7.61 by the then Managing Officer and that it was handed over to the plaintiff, who presented it for registration in the office of the Sub Registrar on 3.11.1961 and an endorsement of its registration was made by Sub Registrar on the same day and that the contents of this sale deed were transcribed in the registration book on 11.12.1961. It was also held that earlier thereto i.e. on 22.10.1961 Parma Shah submitted an application to the Managing Officer that the sale deed has not yet been registered and his name be added in the sale deed as purchaser as he had paid the sale consideration by getting it adjusted against the compensation claim of Joint Hindu Family. It was also held that this application was accepted. The lower appellate Court of course held that it was certainly illegal on the part of the rehabilitation authorities to get the name of Parma Shah added in the original sale deed through a Clerk after the sale deed had been registered and for this reason the addition of the name of Parma Shah in the registration record of the sale deed as joint purchaser of the suit property is absolutely of no legal effect, and that if at all there was any error or omission, the authorities were supposed to execute a fresh deed. However, the lower appellate court further observed that even on the assumption that the sale deed is in favour of the plaintiff to the exclusion of Parma Shah, the plaintiff cannot be held to be exclusive owner of the suit property. It is also held that the plaintiff/defendant and also Parma Shah have stated that they constituted joint Hindu family and the claim submitted by Parma Shah to rehabilitation authorities was in respect of the Joint Hindu Family. The lower appellate court has also held that the plaintiff has himself admitted that he did not make the payment of even a single paisa towards sale consideration of the suit property and that the entire sale consideration was paid by Parma Shah. It was also observed by the lower appellate court that no order of allotment of the suit property in the name of the plaintiff has been placed on the file or has otherwise established and that it is still a mystery as to how the sale deed Ex.P1 happened to be executed in the name of the plaintiff when the entire sale consideration was paid by his father-Shri Parma Shah.

Learned counsel for the appellant has relied on the judgments of AIR 1930 57 (Privy Council) and Bhagat Singh and Ors. v. Jaswant Singh AIR 1966 S.C. 1861. In both these cases it was held that where a claim has never been made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. As against this, the fact is that plaintiff Tirath Ram in his subsequent deposition dated 27.3.1978 has stated that his father Parma Shah had taken this house from Rehabilitation Department in the capacity as a karta of the Joint Hindu Family. Thereafter he goes to say that his father effected partition.

The admission of the plaintiff Tirath Ram of the property being taken by his father as Karta of a Joint Hindu Family goes against his own case and even though the plea is not taken by the defendant, the admission of the plaintiff is the best evidence. In Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, it has been held that admission, though not conclusive, is the best evidence. This admission made by Tirath Ram is not rebutted except by saying that subsequently there was a partition, which is not proved. Therefore, having made an admission to the effect mentioned above, the contention that no evidence can be looked into on the contention which is never pleaded, cannot come to the help of the appellant. In view of this position also the variance in both the documents Ex.Pl and Ex.D3 assumes importance. The finding of the courts below that Parma Shah was allottee as a displaced person cannot be over looked. It is to be seen that department of rehabilitation working on behalf of President of India was the vendor and if there was a mistake in the document executed, the vendor could apply for amendment of the mistake. The fact remains that document Ex.P1 is with erasure and courts would be slow in such cases where the parties produce important documents with erasure made therein. In the light of these facts, the contention regarding the plea of property being of the joint family not taken has to be considered. The lower appellate court has dealt with this matter. The lower appellate Court has held that the defendant did not plead that Parma Shah was not the exclusive owner of the suit property and that from the evidence it emerges that the joint Hindu family of which Parma Shah is the head is owner of the suit property. If from the evidence as it is, it is found that the plaintiffs say is not correct and that the nature of the property as being of the joint emerges, the courts will be slow in passing decree on the document which appears to be forged. Leaving aside the question as to whether the name of Parma Shah could have been erased subsequent to the registration, the removal of the name from the document speaks volume against the plaintiff. The party which comes to the court has to come with clean hands. Therefore, when the plaintiff is not coming with clean hand and the fact shows that the consideration was paid from the compensation to Parma Shah a displaced person, the fact remains that the property did not belong to the plaintiff. Moreover the department of rehabilitation committed mistake and the document, according to the lower appellate court, instead of being executed again, was corrected. This mistake cannot prejudice the rights of the parties because it was a mistake of the rehabilitation department to get the document issued in the name of a person to whom the compensation was not given.

In view of the above, this appeal is without merit and is hereby dismissed.