GURMUKH RAM MADAN Vs. BHAGWAN DAS MADAN

JUDGEMENT

(1.) The plaintiff in a suit is in appeal before us. He filed a suit on July 4, 1970 claiming half share in a house of which he is in joint possession and sought for partition. The defendants in the suit resisted the claim and contended that the plaintiff had no right, title or interest in the said house and the same belongs to him exclusively of which he is in possession as owner. The trial Court found that the evidence tendered by the appellant is inconsistent, unnatural and does not inspire confidence. The case put forth by him is that the defendant had obtained from the office of the Sub-Registrar the original deed dated 3rd November, 1963. However, execution of the said deed had not been established and it was also not clear from the material on record that the consent of the defendant in respect thereof had been obtained. There was no evidence to show that the appellant had made any contribution either towards the purchase of the said site or in the construction of the house thereof. The said suit was dismissed. On appeal the High Court examined the question whether the appellant has any interest to the extent of half share or any other share in the property in dispute. The case set up by the appellant in the High Court was that the defendant had made a transfer of half share in the house in favour of the plaintiff as is borne out from a registered instrument Ex. A.6.

(2.) The High Court noticed that the plot in which the house is situated was acquired on 1st November, 1960 measuring about 1650 sq. ft. Having purchased the lease hold rights from Sadhu Ram for a consideration of Rs. 4,950/- of which Rs. 200/- was paid as earnest money and the balance was paid at the time of registration, the said deed is said to have been executed on 1st November, 1960. The defendant contended that subsequent to the purchase of the said suit (plot), he put up construction at his expense exclusively. He is in possession of the property and has been paying municipal taxes and realizing amounts from the tenants in occupation over a portion of the house while in the other portion he is in occupation. The Courts below were satisfied as to the exact explanation given by the defendant that there was enough resources with him to purchase the property and put up construction thereon. Thus burden lay very heavily upon the appellant-plaintiff to prove his case. Mela Ram, the father had died in the year 1965. He contended that even during his lifetime, there was a partition among the six brothers in or about the year 1962 and that the property dispute was also included in the partition and the sale was in writing though unregistered. Subsequently, he put forth a case that no writing had been made in this regard. At another stage, the appellant-plaintiff contended that there was no joint family at all. Yet another kind of case was put forth by the appellant that there (sic) was joint purchaser of the land along with the respondent and the contribution had been raised by the respondent as a co-owner. A perusal of the plaint would disclose that there is no reference to the source of acquisition of property in dispute nor does it mention about the purchases of the land over which the construction stands and much less the appellant-plaintiff having contributed any amount over (ever) towards the purchases of the site or towards raising the construction. Even all notices that had been issued prior to the suit were significantly silent on this aspect of the matter. Thus, the claim made by the appellant was hopelessly lacking in the necessary particulars as to the manner in which he could support the same. The pleadings in this state of affairs and the evidence tendered by him was characterised by the High Court as thoroughly unreliable. He has taken different kinds of stands and has done several somersaults in the course of his deposition by contradictory stands taken by him. In the evidence tendered by him, he has stated that he along with the defendant purchased the land for rupees five thousand and both of them contributed in equal shares and for the construction of the house a sum of Rs. 16,400/- had been spent and that he paid a sum of Rs. 8,200/-. That was the evidence tendered by him in the Examination-in-Chief. In cross-examination he stated curiously that the land had been purchased by his father and changed that stance to that his brother may have purchased it or their father may have purchased the land in the name of both. But he was firm on the question that he and his brother respondent had contributed equally towards the construction. He also maintained that his father was also party to the construction and had invested money. Later on, he took the stand that he had given some amount in cash and some amount was remitted by him out of the Savings Bank account. On a totality of the analysis of the evidence, the High Court came to the conclusion that the appellant stood self-condemned. One of the D.Ws. Sadanand. appellant's brother who is not concerned with this litigation in the course of his evidence stated that the defendant had exclusively purchased out of his own resources and he had constructed the house of his own expense for whic he purchased material from time to time. The defendant produced vouchers in support of having purchased the construction material.

(3.) In Ex. 6 dated 3rd November, 1962 it was noticed that it was a certified copy of the registered deed. The trial Court did not admit this document in evidence on the ground that absence of the original document had not been duly accounted for and relied upon certain decisions. The appellant contended that original document dated 3rd November, 1962 had been withdrawn by the respondent from the office of the Sub-Registrar concerned and evidence on record does not bear it out. In the ordinary course of probabilities, the original document should have been in custody of the appellant in whose favour it had been executed. He did not take it back from the office of the Sub-Registrar and no effort was made to make available the records from the Sub-Registrar's office in this regard. A letter is said to have been written by the appellant and in reply thereto he received a communication from one Gyan Chand Mehta stating that the document had been taken away by the respondent on November 19, 1962. It is not clear as to how Gyan Chand Mehta could send a letter of this nature when he was not an employee of the office of the Sub-Registrar and therefore the trial Court did not accept this piece of evidence. The appellant, however, admitted that he did not enquire from the office of the Sub-Registrar as to how the respondent was allowed to take away the original even after receiving the letter from the said Gyan Chand Mehta who was only a petition writer.