BEGI AND ORS. Vs. PREM KUMAR

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree dated 16.08.2001, passed by the learned District Judge, Kullu, H.P. in Civil Appeal No. 09 of 2001.

(2.) MATERIAL facts necessary for adjudication of this Regular Second Appeal, are that the Respondent -Plaintiff (hereinafter referred to as 'the Plaintiff' for convenience sake), had instituted a suit against the Appellants -Defendants (hereinafter referred to as 'the Defendants' for brevity sake) for declaration with consequential relief of injunction. According to the Plaintiff, the Defendants were recorded owners in possession of the land, as detailed in the plaint, situated in Phati and Kothi Manali, Tehsil and District Kullu, H.P. to the extent of 7/17 shares, equivalent to 0 -7 -10 biswas and Shri Hukam Ram, S/o Shri Khim Dass, husband of Defendants No. 1 and 2, namely, Smt. Begi and Smt. Karmi, was owner in possession 1/2 share of the land measuring 1 ª0 -0 bighas, incorporated in the copy of Jamabandi for the year 1963 -64 of Phati and Kothi Manali. Shri Hukam Ram, predecessor -in -interest of the Defendants, vide agreement dated 07.05.1977, Mark -A entered into an agreement with the Plaintiff, whereby, he delivered the possession of the land measuring 0 -7 ª10 biswas out of the aforesaid land in favour of the Plaintiff for the purpose of construction of two storeyed building comprising of 8 rooms, i.e., four rooms in each floor for a period of three years and after the construction of the aforesaid building, Hukam Ram was to execute and register a sale deed with respect to 1/2 share of the aforesaid land measuring 0 -7 -10 biswas and also the building constructed thereon in favour of the Plaintiff in lieu of the expenses to be incurred by the Plaintiff for the construction of the building. Consequently, the Plaintiff constructed two storeyed building comprising of 8 rooms as per the agreement. Thereafter, the Plaintiff and Hukam Ram decided to construct additional accommodation in the existing 8 rooms building and to run the hotel business in the partnership and accordingly, the Plaintiff was authorized to make necessary arrangements and to make funds for the same. Accordingly, the Plaintiff constructed four more rooms and two dining halls in the existing building by spending huge amount from his own sources and also by raising loan of Rs.1,10,000/ - from the H.P. State Financial Corporation Ltd., Shimla. Hukam Ram also executed a General Power of Attorney in favour of the Plaintiff in this respect. Hukam Ram and Plaintiff decided to run the hotel business in partnership and accordingly, the partnership deed dated 29.11.1980 was entered into between them. According to the partnership deed dated 29.11.1980, Hukam Ram admitted and accepted that the Plaintiff has constructed the building of Hotel Mountesque, Manali (hereinafter to be referred as 'Hotel') consisting of 12 rooms, two dining halls, bath -rooms and Laboratories and became partners of the same in equal shares. The loan was returnable from the income of the hotel and in lieu of the expenses incurred by the Plaintiff, Hukam Ram agreed to transfer 1/2 share of the land measuring 0 -7 -10 biswas and 1/2 share of the hotel in favour of the Plaintiff. It was further agreed upon by Hukam Ram that in case of his failure to transfer 1/2 share of the land and hotel, the Plaintiff shall be entitled to get the sale deed executed and registered through court of law. Subsequently, Khasra No. 2260/1813 was bifurcated due to some acquisition of the portion of land, as a result of which, the share of Hukam Ram was reduced to 7 biswas. Hukam Ram expired in the year, 1993. The Defendants inherited his estates and stepped into the shoes of Hukam Ram. The H.P.F.C. loan was not cleared during the life time of Hukam Ram and, as such, 1/2 portion of the land and hotel could not be transferred in favour of the Plaintiff. However, after the death of Hukam Ram, the Defendants started denying the partnership and agreement, as entered into by the Plaintiff with Hukam Ram. After the death of Hukam Ram, the Plaintiff further liquidated the loan of H.P.F.C. to the extent of Rs.25,000/ -. It is in these circumstances, the present suit was filed.

(3.) PLAINTIFF filed the replication. Trial Court framed the issues on 21.11.1998 and 13.07.2000. The suit was decreed on 15.12.2000, whereby the Defendants were directed to execute and register the sale deed in favour of the Plaintiff in respect of half share of the building of Hotel Mountesque and the half share of the land underneath the Hotel as per agreements Ex. PW -2/A and Ex. PW -7/B within thirty days from the date the Plaintiff liquidates the remaining loan of H.P.F.C.