CHANDER PARKASH MALHOTRA Vs. R.B.S. CHAHAL

JUDGEMENT

(1.) ONE Jai Chand Malhotra was the owner of House No. 50 Sector 10-A, Chandigarh, measuring I Kanal. He died on 13.7.1973 leaving behind 8 heirs i.e. six sons and two daughters. On his death, all of them became owners to the extent of 1/8th share. At the time of death of Jai Chand, Chander Parkash, his son (appellant herein) alone was in possession and continues to be in possession till date. A dispute arose among the other heirs and Chander Parkash. For settling this dispute an agreement dated 24.7.1973 was entered into between all the heirs. As per the agreement, Chander Parkash could purchase the share of all brothers and sisters by 31.12.1973 by making a payment of Rs. 63,000/-. He was required to pay Rs. 6,300/- as earnest money which he paid. It was also stipulated under the agreement that in case he fails to pay the amount of Rs. 63,000/- on or before 31.12.1.973, he would forfeit his earnest money and shall pay rent at the rate of Rs. 250/- per month from 1.8.1973 to 31.12.1973 and at the rate of Rs. 150/- per month from 1.6.1973 to 31.7.1973 to his brothers and sisters under proper receipt. He did not pay the amount and, therefore, his earnest money was forfeited and he also became liable to pay rent. As he did not pay rent, his brothers and sisters filed a petition on 29.1.1.975 for his ejectment under the East Punjab Rent Restriction Act (hereinafter referred to as the Act). Chander Parkash took objection on the ground that the petition was not competent against him as there was no relationship of landlord and tenant between him and the parties to the petition. He rather stated that he being a co-sharer was entitled to retain possession. The Rent Controller dismissed the application. On appeal by brothers and sisters, the order of the Rent Controller was set aside and Chander Parkash was ordered to be ejected by delivering possession symbolically to his brothers and sisters. Thus, Chander Parkash continued to remain in possession as co-sharer. Against the order of the Appellate Court, Chander Parkash preferred civil revision which was dismissed and S.L.P. against these orders was also dismissed on September 9, 1985. While these proceedings under the Act were pending before the Authorities, Chander Parkash filed Civil Suit No. 131 of 1976 for specific performance of the agreement dated 24.7.1973 stating therein that he was ready and willing to perform his part of the contract and the same be enforced. This suit, on contest, was dismissed vide judgment dated 16.2.1981. The trial court found that Chander Parkash was not ready and willing to perform his part of the contract. This judgment became final as no appeal was preferred. Finding no alternative to come in possession, brothers and sisters of Chander Parkash filed suit by way of partition. Trial Court passed preliminary decree declaring respective share of the parties. Trial court also found that Chander Parkash was liable to pay rent with effect from 14.7.1973. As the property in suit is situated within the Union Territory of Chandigarh and under Rule 14 of the Chandigarh (Sale of Sites and Buildings) Rules, 1960 (for short the Rules) property could not be partitioned by metes and bounds, trial Court opined that "if the suit property cannot be appropriately partitioned, then the only possible way of partition may be by auctioning the same and dividing the sale proceeds between it owners." Chander Parkash, feeling aggrieved of this judgment and decree, preferred appeal before the Additional District Judge, Chandigarh, who dismissed the appeal vide judgment dated 1.9.1984 with a slight modification that the trial court ought not have opined that the property is not partitionable or selling the same by public auction and ought to have left the same to the Court passing final decree. The judgment of the trial Court and the Appellate Court have been impugned in this Regular Second appeal by Chander Parkash.

(2.) BEFORE the appeal could be decided on merits, Chander Parkash filed C.M. No. 2981-C-1993 in this Court in which he stated that in view of the judgment of the Supreme Court in Civil Appeals No. 4974 and 2305 of 1992, this second appeal may be dismissed as withdrawn as the same has become infructuous. He further stated that he is no more interested in continuing with the appeal. Apart from this, three other C.Ms. i.e. No. 2696-C-1993, 2497-C-1993 and 2667-C-1993 have been filed. C.M. No. 2496-C-1993 under Order 22 Rule 10 of the Code of Civil Procedure is by Shri R.B.S. Chahal and Mrs Sukhraj Chahal with the prayer that they be brought on record in place of respondents No. 1 to 7 as they have purchased the share of brothers and sisters of Chander Parkash vide sale deed and thus they are entitled to be impleaded in their place. C.M. No. 2497-C-1993 is for disposing of the appeal in terms of the order of the Supreme Court and C.M. No. 2667-C-1993 is a formal application for issuance of Dasti summons. Thus, now it has become necessary for this Court to decide as to whether this appeal has become infructuous or some directions are required to be given to the Executing Court suggesting the mode of manner in which the property should be partitioned or sold keeping in view the judgment of the Supreme Court in Civil Appeals No. 4974 and 2305 of 1992. Before such a direction is given, it becomes necessary to deal as to how the matter was taken to the apex court in Civil Appeal No. 4974 and 2305 of 1992. At the motion stage, this Court vide order dated 16.10.1984 directed that the proceedings regarding final decree may continue but the final order be not passed. On November 22, 1984 this order was vacated meaning thereby that the trial court could proceed to pass final decree. Plaintiff applied to the trial Court for passing of final decree. Trial Court appointed Local Commissioner to determine as to whether the property can be partitioned and to suggest the mode of partition. Local Commissioner was also directed to go into the account of determine the amount payable by Chander Parkash. In his report dated 7.2.1989 the Local Commissioner opined that in the presence of the bye-laws under the Capital of Punjab (Development and Regulation) Act, 1952, property cannot be partitioned by metes and bounds and should be sold and the money so realised, divided among the co-sharers according to their shares. A sum of Rs. 1,28,000/- was found due from Chander Parkash to his brothers and sisters upto 31.1.1987. Objections were preferred by Chander Parkash which were dismissed by the trial court against which Chander Parkash preferred review petition which was also dismissed on 31.7.1989. The order dismissing the objection petition and review petition was impugned by Chander Parkash by filing Civil Revision No. 3266 of 1989 in this Court. Vide order dated 22.2.1991, K.P. Bhandari, J. allowed the said revision and Rule 14 of the Rules ibid was declared to be ultra vires. The report of the Local Commissioner was set aside and report of Mr. Ravinder Partap, Architect who was appointed by K.P. Bhandari, J. during the pendency of the civil revision, was accepted. According to the said report of the Architect, the plot was valued at Rs. 10,79,650/-. The Architect also opined that the property can be partitioned in five independent apartments of 900 sq. ft. each. Having regard to the report of the Architect, Chander Parkash was ordered to be adjusted on the ground floor and other four portions were to be given by way of draw of lots to four co-owners and the remaining co-owners were to get the amount from five co-owners including Chander Parkash who was ordered to be adjusted. The judgment was silent as to who would apply for construction or obtain sanction of the plan and in what manner construction would be made. Since Rule 14 of the rules had been declared ultra vires, S.L.P. was preferred by Union Territory against the order of civil revision. Brothers and sisters of Chander Parkash also impugned the order. This matter was determined by the apex court in Civil Appeals No. 4974 and 2305 of 1992. These appeals were disposed of in the following terms :- "Leave granted.

(3.) ON one or two dates of hearing, counsel for the appellant was present but he fairly stated that the appellate is not interested in pursuing with the matter. I can understand why he was not interested because he is in possession of the building. Almost 20 years have gone since litigation started between the parties, yet it has not come to an end. The added respondents being strangers to Chander Parkash cannot possible live with him in one and the same building. In this situation, it becomes necessary to give some direction to the trial court so that it may proceed to pass final decree and bring the litigation between the parties to an end.