Ram Sarup and Others vs Jowala Parshad and Others

G.R. Majithia, J.—The successors- in-interest of the plaintiff have come up in regular second appeal against the Judgment and decree of the first appellate Court affirming on appeal those of the trial Judge whereby their suit for rendition of accounts regarding the rent of the disputed property was dismissed.

For appreciating the dispute raised in the suit giving rise to this appeal, it is necessary to reproduce the pedigree table of the parties:-

Ralla Ram ------------------------------------------------------------------------------- : : : : : Nagahia Rakha Ram Jagan Nath Arjan Dass Nazir Mal : : (Plaintiff) : : : Parmeshwari 1. Wasakha Ram Durga Devi : Devi (Defdt.No. 3) (widow) : (widow) : 2. Sat Dev : (Defdt. No. 4) -------------------------- : : Jowala Parshad Lachhman Dass (Defdt.No. 1) (Defdt. No. 2)

Indisputably, Ralla Ram was the original owner of the suit property and also all other properties; that he died in the year 1942; that his two sons, namely, Rakha Ram and Nazir Mal had pre-deceased him leaving behind their widows, namely, Parmeshwari Devi and Durga Devi, respectively; that Ralla Ram made a will under which he gave shops Nos. 1 and 2 situate on Railway Road, Moga to Parmeshwari Devi and shops Nos. 3 and 4 to Durga Devi for maintenance during their life time; that after the death of Ralla Ram, Parmeshwari Devi and Durga Devi, widows, were not satisfied with the properties given to them for maintenance by their father-in-law; that Durga Devi filed a civil suit on June 26, 1943 in the court of Sub Judge 1st Class, Moga; that the heirs of Ralla Ram, viz. the parties to the lis and the widow arrived at a compromise, Ex.P- 1; that according to compromise Ex. P-1, in Lieu of shops No. 1 and 2 on the Railway Road which had been given to Parmeshwari Devi, she was given shop No. 94 situate in Moga Mandi and for shops No. 3 and 4 which Ralla Ram had bequeathed to Durga Devi she was given shop No. 82 also situate in Moga Mandi, for maintenance during their life time; that the rent of the four shops in dispute situate on the Roadway Road was realized by Jowala Parshad, defendant No. 1 (hereinafter the contesting defendant) alone as a result of the partition of the entire remaining property which was joint of the parties effected on the death of Parmeshwari Devi and Durga Devi, widows; Jagan Nath alleged that the four shops No. 1 to 4 on the Railway Road were joint of the parties and the contesting defendant was realising the rent thereof and he was not rendering the accounts despite requests; that defendants No. 2 to 4 admitted the claim of the plaintiff, but the suit was contested by defendant No. 1.

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

Whether the shops in questions are joint of the parties? OPP

If issue No. 1 is proved, whether defendant No. 1 is not accounting party? OPD

What amount of rent has been realized for the shops in suit from the tenants by defendant No. 1? OPD

How much is the share of each party out of the rent realized? O.P. Parties.

4 A. Whether the suit is in time? OPD

Relief.

Under issue No. 1, the trial Judge accepted the contesting defendant''s version and held that after the execution of the compromise, Exhibit P-1, the parties to the lis partitioned the entire joint Hindu family properties and in partition, the shops in dispute (viz. shops Nos. 1 to 4 situated at Railway Road, Moga) fell to the share of the contesting respondent; shop No. 82 situated in Moga Mandi, which was given to Durga Devi as a result of compromise Ex. P-1. reverted to defendants No. 3 and 4 after her death; that defendants Nos. 3 and 4 sold the same vide sale deed deated May 21, 1972, Ex. D-11; that after the death of Parmeshwari Devi, shop No. 94 reverted to the plaintiff in terms of the compromise, Ex.P-1, and he had been realizing rent of the same. On ultimate analysis, the trial Judge found that the suit property was not joint of the parties. Issue No. 2 was answered in favour of the contesting defendant; issue No. 3 was left undecided for want of evidence; issue No. 4 was held redundant in view of the finding under issue No. 1; issue No. 4-A was decided against the plaintiff and in favour of the contesting defendant. In view of the finding under issue No. 1, the trial Judge dismissed the suit.

On appeal by the plaintiff, the finding recorded under issue No. 1 by the trial Judge was affirmed by the first appellant Court. The first appellate Court, after examining the evidence, held that after compromise Ex.P-1, joint Hindu family property was partitioned. Shop No. 82, which was given to Durga Devi, widow of Nazir Mal, reverted to defendants No. 3 and 4 after her death in the year 1967, who sold the said shop to one Daulat Ram on April 21, 1972 for Rs. 30,000/-, vide sale deed Ex.D-11. After the death of Parmeshwari Devi, widow of Rakha Ram, shop No. 94 reverted to the plaintiff and he had been exclusively realising the rent thereof. The rent of the disputed shops was being realised exclusively by the contesting defendant for more than 22 years. He had been inducting tenants, filing applications for their eviction and pursuant to the order of eviction, taking possession from the evicted tenants. If the plaintiff or defendants No. 2 to 4 had any right in the disputed property, they would have moved application for being impleaded as parties to the eviction applications. The plaintiff or defendants No. 2 to 4 never moved Rent Controller for joining them as co-landlords in those eviction applications. This conduct of the plaintiff or of defendants No. 2 to 4 for permitting the contesting defendant to realize the rent exclusively for such a long period is a strong circumstances indicating that the disputed shops had fallen to the share of the contesting defendant in partition pursuant to compromise Ex.P-1.

The finding recorded by the first appellate Court, on appreciation of the evidence, is essentially a finding of fact and calls for no interference. Even otherwise, having gone through the evidence, I find that the conclusions arrived at by the first appellate Court are unexceptional. There is no merit in the appeal.

For the reasons stated above, the appeal fails and is dismissed but with no order as to costs.