Harphool Singh v. Daropti & Ors.

6. The respondents no.1 to 6 / plaintiffs and the appellant / defendant went to trial on the following issues (the issues were initially framed on 19th November, 1997 and re-casted as on 19th December, 1998):- “1. Whether the suit is bad for misjoinder of parties as alleged in para 4 of the preliminary objections is WS? If so to what effect? OPD

2. Whether the suit is properly valued for the purpose of court fee and jurisdiction as alleged in Para 5 of preliminary objections of WS? OPP

3. Whether the defendant is a sole owner of the suit property as alleged in paras No.3 to 6 of the WS? If so to what effect? OPD

4. If issue No.3 is decided in negative, whether the plaintiffs are entitled to the relief of partition as claimed, and further to the relief of injunction as well? OPP

5. Whether the suit for partition without asking for the possession in the circumstances of the case is maintainable? OPP

6. Relief.”

7. Of the respondents No.1 to 6 / plaintiffs, only the respondent no.1 Smt. Daropti appeared as a witness. The appellant / defendant Shri Harphool Singh besides himself examined two other witnesses.

8. The learned Addl. District Judge, by the impugned judgment and decree:-

9. The counsel for the appellant / defendant has argued:- (a) that the learned Addl. District Judge erred in not holding that onus was upon the respondents no.1 to 6 / plaintiffs to prove that the subject property was owned by Shri Gainda Ram and which onus respondents no.1 to 6 / plaintiffs had failed to discharge; (b) that the learned Addl. District Judge erred in placing the onus on the appellant / defendant to prove that Shri Malkhan Singh was the exclusive owner of the property; and,

(c) that the learned Addl. District Judge erred in deciding the Issue no.5 against the appellant / defendant; it is contended that the respondents no.1 to 6 / plaintiffs though in the plaint claimed the appellant / defendant to be in unauthorised possession of the property, did not seek the relief of possession against him and the learned Addl. District Judge cannot in the garb of a decree for partition direct the appellant / defendant to deliver possession of half of the property to the respondents no.1 to 6 / plaintiffs who have been held to be owners of one half share in the property.

10. The counsel for the respondents no.1 to 6 / plaintiffs has fairly admitted that the respondents no.1 to 6 / plaintiffs did not prove any documents showing title of Shri Gainda Ram. It is however his contention that denial by the appellant / defendant of the pleas of the respondents no.1 to 6 / plaintiffs in the plaint, of Shri Gainda Ram being the owner and Shri Beni Prashad and Shri Malkhan Singh upon the demise of Shri Gainda Ram having been equal owners, was not specific as held by the learned Addl. District Judge. It is further contended that the counsel for the appellant / defendant in the cross examination of the respondent no.1 / plaintiff suggested that the predecessor of the respondents no.1 to 6 / plaintiffs namely Shri Beni Prashad had sold his share in the property to Shri Malkhan Singh and which amounts to an admission of Shri Beni Prashad and Shri Malkhan Singh being equal owners of the property, as held by the learned Addl. District Judge.

11. I have considered the rival contentions and also gone through the Trial Court record.

12. The respondents No. 1 to 6 / plaintiffs approached the Court with a case of, the property of which partition was sought being owned by Shri Gainda Ram and after the death of Shri Gainda Ram having been inherited equally by Shri Beni Prasad and Shri Malkhan Singh. The claim for half share of the property was on the said basis. While the heirs of Shri Malkhan Singh chose not to defend the suit and oppose the said claim of the respondents No. 1 to 6 / plaintiffs, the appellant, claiming to be the purchaser of the entire property from the heirs of Shri Malkhan Singh contested the said claim of the respondents no.1 to 6 plaintiffs. Though the Ld. Additional District Judge, in the impugned judgment, held the denial in the written statement of the appellant of the plea in the plaint of Shri Gainda Ram and after Shri Gainda Ram, Shri Beni Prasad and Shri Malkhan Singh being the owners of the property to be vague, but on a reading of the entire written statement I am unable to construe therefrom any admission on the part of the appellant of Shri Gainda Ram and after Shri Gainda Ram, Shri Beni Prasad and Shri Malkhan Singh being the owners of the property. A reading of the entire written statement shows the appellants to have denied the said plea in the plaint and to have pleaded Shri Malkhan Singh being the sole owner of the property.

13. In the aforesaid state of pleadings, for the respondents no.1 to 6 / plaintiffs to succeed in the suit, they ought to have proved the title of Shri Gainda Ram to the property and if had done the same, a presumption could have been drawn of, on the demise of Shri Gainda Ram, Shri Beni Prasad and Shri Malkhan Singh having become equal owners of the property. Admittedly the respondents no.1 to 6 / plaintiffs did not lead any such evidence.

14. I have considered the effect if any, of no issue placing such burden on the respondents no.1 to 6 / plaintiffs having been framed and on the contrary issue framed, placing the burden on the appellant/defendant to prove that Shri Malkhan Singh was the sole owner of the property.

15. A perusal of the trial court file shows that the appellant/defendant indeed filed an application for recasting of the issues inter alia proposing an issue calling upon the respondents no.1 to 6 / plaintiffs to prove whether the suit property was ancestral and whether the respondents no.1 to 6 / plaintiffs were having half share therein. The said application was disposed of vide order dated 19th December, 1998 though recasting the issues on other aspects but with respect to the said proposed issue reasoning that the same need not be framed since the already framed issue i.e. the issue No. 4 herein above was felt to be sufficient to serve the purpose because the entitlement to the relief of partition as claimed would emanate only if the respondents no.1 to 6 / plaintiffs succeeded in proving that the property of which partition was claimed was ancestral property.

16. It is thus not as if the respondents no.1 to 6 / plaintiffs can be said to have been misguided, in discharging the onus to prove that the property was owned by Shri Gainda Ram, owing to the onus having been wrongly placed on the appellant/defendant to prove that he was the sole owner of the property.

17. I find that the Ld. Additional District Judge, in the impugned judgment, under the discussion on issue no.3, after holding that the appellant/defendant has failed to prove that he was the sole owner of the property, proceeded to under issue No. 4 presume that if the appellant/defendant is not the sole owner of the property, the respondent no.1 to 6 / plaintiffs would axiomatically have a share therein, without realizing that the respondents no.1 to 6 / plaintiffs had failed to prove the same. This has resulted in the suit of the respondents no.1 to 6 / plaintiffs having been decreed without the respondents no. 1 to 6 / plaintiffs having proved any title to or share in the property which as aforesaid was contested and was in issue. The Ld. Additional District Judge, in the impugned judgment, did not notice that vide order dated 19th December, 1998 supra on the application of the appellant/defendant for recasting of issues it had been already observed that the respondents no. 1 to 6 / plaintiffs, to succeed in the suit, would have to prove that the property belonged to Shri Gainda Ram and Shri Beni Prasad had inherited a share therein. The Ld. Additional District Judge erroneously held that once the appellant/defendant under issue No. 3 had failed to prove his sole ownership of the property, it would axiomatically follow that the respondents no.1 to 6 / plaintiffs have half share in the property.

18. It is apposite to also notice the reasoning given by the Ld. Additional District Judge for holding the appellant/defendant to have not proved his sole title to the property, though in my view, once the respondents no. 1 to 6 / plaintiffs fail to prove that they have any title to or share in the property and as a consequence whereof the suit for partition brought by them has to fail, there is no need for this court to pronounce whether the appellant/defendant has a title to the property or not.

19. The Ld. Additional District Judge in this regard has held, (i) that the appellant/defendant claims to have purchased the property from the legal heirs of Shri Malkhan Singh vide Agreement to Sell, Power of Attorney, Will, etc and not by way of a sale deed; (ii) however the appellant/defendant did not disclose the title of the legal heirs of Shri Malkhan Singh or of Shri Malkhan Singh to the property; (iii) though in the Agreement to Sell sale consideration paid of Rs. 75,000/- was shown but the appellant/defendant no.1 in the written statement did not plead having paid the said consideration; (iv) that the counsel for the appellant/defendant in the crossexamination of the respondent no.1/plaintiff suggested that Shri Beni Prasad had sold the property to Shri Malkhan Singh and which clearly proved that Shri Beni Prasad also had a share in the property; (v) that since the appellant/defendant in the written statement had not pleaded any such sale by Shri Beni Prasad to Shri Malkhan Singh, though no credence could be given thereto but admission could be drawn therefrom; (vi) that since the appellant/defendant pleaded in the written statement having purchased the property through the medium of Agreement to Sell, Power of Attorney, Will, etc, the evidence led to that effect was beyond pleadings and could not been seen; (vii) that the legal heirs of Shri Malkhan Singh were not produced to prove the same; (viii) the legal heirs of Shri Malkhan Singh had chosen not to contest the claim of the respondents no.1 to 6 / plaintiffs of Shri Malkhan Singh and Shri Beni Prasad being equal owners of the property; (ix) there could be no sale from the legal heirs of Shri Malkhan Singh to the appellant/defendant without a registered sale deed. It would thus be seen that the learned ADJ has not disbelieved the Agreement to Sell, Power of Attorney etc executed by legal heirs of Shri Malkhan Singh in favour of appellant/defendant and found to have been proved by the appellant/defendant. The said documents themselves record that the entire sale consideration had been paid and possession of the property delivered by the legal heirs of Shri Malkhan Singh to he appellant/defendant in presence to the Agreement to Sell. The appellant/defendant would thus be entitled to protect his possession under Section 53A of the Transfer of Property Act 1881, even though not having a title to the property in the absence of a sale deed.

20. I reiterate that once the respondents no.1 to 6 / plaintiffs on whom the onus rested to prove having a share in the property had failed to prove the same, there is no need for this Court to pronounce on the title if any of the appellant/defendant to the property. I may however notice that the Division Bench of this Court in Asha M Jain Vs. Canara Bank 94(2001) DLT 841 held that titles on the basis of Agreement to Sell, Power of Attorney, Will, etc. have to be recognized by the Court. Supreme Court subsequently in Suraj Lamp Industries Vs. State of Haryana (2012) 1 SCC 656 set aside the said view and held that title in a property could be conveyed only in the manner provided under the Transfer of Property Act and not in any other manner and no claim for title to the property on the basis of Agreement to Sell, Power of Attorney, Will, etc, can be entertained.

21. It however cannot be forgotten that the respondents no.1 to 6 / plaintiffs were not claiming possession of the property from the appellant/defendant for the reason of the appellant/defendant not having any title to the property. The respondents no.1 to 6 / plaintiffs were claiming partition of the property setting up title in a share to the property in their own favour and which share they were required to prove and which they have failed to prove. Once the respondents no.1 to 6 / plaintiffs failed to prove a share in the property, there is to be no adjudication of the capacity in which the appellant/defendant is in possession of the property.

22. As far as the reasoning given by the Ld. Additional District Judge on the basis of the suggestion made by the counsel for the appellant/defendant to the respondent no.1/plaintiff, of Shri Beni Prasad having sold his share in the property to Shri Malkhan Singh is concerned, the counsel for the appellant/defendant has explained that the said suggestion came to be made during the cross-examination on the day when the counsel engaged by the appellant/defendant was not present and he, a junior at the Bar at that time working in the chamber of the Advocate engaged by the appellant/defendant conducted the cross-examination.

23. I tend to agree with the aforesaid explanation. The suggestion made has no basis whatsoever in the pleadings. Rather, it was the case of the respondents no.1 to 6 / original plaintiff, being the predecessor in interest of, in the plaint itself that the mutation of the property in the records of house tax in the sole name of Shri Malkhan Singh was with his consent. Not only so, admittedly Shri Malkhan Singh and after the death of Shri Malkhan Singh his legal heirs alone were in possession of the entire property. Such errors/mistakes made by youngsters at the Bar, in the process of learning the ropes of the profession, cannot be allowed to create or defeat titles and immovable property.

24. I find considerable merit also in the contention of the counsel for the appellant/defendant of the finding of the Ld. Additional District Judge on issue No. 5 aforesaid also to be erroneous. It was not the case of the respondents no.1 to 6 / plaintiffs that the appellant/defendant was in possession of the entire property as an assignee of the legal heirs of Shri Malkhan Singh and as a co-owner and that his possession was on behalf of the other co-owners also. On the contrary the respondents no.1 to 6 / plaintiffs approached the Court with a categorical assertion of the appellant/defendant being in unauthorized possession and occupation of the property. With such a plea, the respondents no.1 to 6/plaintiffs even if were to succeed on their claim of ownership of half share in the property and to a decree of partition could not have in pursuance to the said decree of partition recovered possession of half share of the property from the appellant/defendant. To be entitled to possession of their share of the property from the appellant/defendant, the respondents no.1 to 6 / plaintiffs were required to sue the appellant/defendant for the relief of recovery of possession, by paying court fees on such half share of the property.

25. Resultantly, the appeal succeeds. The judgment and decree impugned in the appeal is set aside and the suit of the respondents no.1 to 6 / plaintiffs is dismissed. However, no costs. Decree sheet be prepared.