KRISHAN GOPAL Vs. RATTAN SINGH

JUDGEMENT

(1.) THIS second appeal arises out of a litigation which was initiated in the year 1982. The present appellant/plaintiff was successful in the first round of litigation, upto first appeal stage. When the matter came to this Court, in second appeal on an appeal having been preferred by the defendant/respondent, the judgment and decree passed by the first appellate Court was set aside. The case was remanded. This order was passed in second appeal No. 205 of 1990. The judgment was delivered on 14th of December 1990. The remand order was passed with a view to record a finding vis-a-vis the status of the house which was said to be owned by the son of the present appellant. The name of the son is Ajay Kumar. The statement of Ajay Kumar was recorded by the appellate Court. Some documents also came on record before appellate Court. These consist of a deed Ex. A/3. This is dated 16th May, 1962. A decree between Ajay Kumar and his uncle and cousin brother namely Damodar Prasad and Rajendra Prasad respectively was also placed on record. This is Ex. A/2. This is dated 11th April, 1982. By these documents it was sought to be projected that the ownership of the house was with Ajay Kumar son of Krishna Gopal and therefore, this accommodation cannot be taken note of for concluding that the present landlord/appellant owns another accommodation. The fact that a suit was filed which led to the passing of the decree Ex. A/2. was adverted to by Ajay Kumar who appeared before the appellate Court as A.W.1. After taking note of the entire evidence which originally came on the record and the evidence which came on record in appeal, a finding was recorded that the house in question said to be owned by Ajay Kumar was in fact owned by Krishna Gopal. For coming to this conclusion, the Court below has observed that originally the land where the construction existed came to be purchased by the appellant Krishna Gopal from one Hari Prasad Verma. This deed is dated 16th of May 1962. It was concluded that in case relinquishment of right was to be effected with regard to immovable property, the value whereof is more then Rs. 100, then the deed required registration. This was held to be imperative. As there is no registered deed in existence, it was concluded that Krishna Gopal continues to be the owner of the land and consequently of the house built thereon. With regard to Ex. A/2, it was observed that this decree was not between the father and the son and therefore, this would not come to the assistance of Krishan Gopal and he cannot contend that he is not the owner.

(2.) WITH regard to the evidence which was already on the record, it was concluded that the appellant had failed to prove that he was staying in tenanted premises. The plea regarding he being a tenant under one Ramcharan Lal was disbelieved on the ground that Ramcharanlal is, friend of Krishna Gopal. It has also been recorded that even if it be believed that the appellant is staying in tenanted premises, even then he is not entitled to any relief because he has not pleaded and proved that the premises under his occupation were not suitable. (Reference in this regard be made to paragraphs 45 and 47 of the judgment given by the first appellate Court).

(3.) IT appears that with a view to bind the uncle and cousin brothers a suit was also filed. This suit came to be decreed on 23rd of March 1982. Reference in this decree is made to the writing dated 3rd of February 1969. This writing is the same, which is on the reverse of Ex. A/3. According to the learned counsel appearing for the appellant, the suit was filed after 3rd February, 1969. This date is 15th of May 1982. When the suit was filed in 1982 then the question that issue regarding family partition would arise in the present proceedings was not there. This question cropped up only on the order of remand having been passed by this Court. It is accordingly argued that an Ex. A/3, which is dated 3rd of February 1969 and which is duly mentioned in decree dated 23.3.1982 should be taken as genuine. What is sought to be argued is that these two documents cannot be said to have been created for the purposes of this litigation. To repeat the argument is that these documents came into existence when a dispute as to the ownership of the property was not visualised. It was never in contemplation that on remand such an issue would arise, in the present litigation. On the basis of this, it is contended that deed of partition should be taken on its face value and as this deed is a record of the past transaction. It should be believed. It is argued that this does not require to be registered.