BALA BAKSH Vs. MAGAN LAL AND ORS.

JUDGEMENT

(1.) This is plaintiff's regular first appeal assailing the judgment and decree dated 11.11.1974 passed by Additional District Judge, Alwar (for short 'the trial court') whereby the civil suit filed by him for partition and possession of the properties in dispute, has been dismissed. Defendant -respondent has also filed counter -claim in the appeal questioning the findings recorded by the trial court especially on Issue No. 7, extending benefit of Sec. 14 of the Limitation Act to the plaintiff -appellant.

(2.) The appellant -plaintiff (hereinafter referred to as 'the plaintiff') in the suit pleaded that he was nephew of defendant Bhajan Lal (hereinafter referred to as 'the defendant'). Shri Buddhilal, who died in 1937, was their common ancestor. Ancestral property of Buddhi Lal, who died in 1937, were partitioned. Budhi Lal left surviving seven sons. Two of them namely Jagan Prasad, deceased, through his son Bala Bux (original plaintiff herein) and Bhajan Lal(original defendant herein) even after partition remained joint and held the properties and business jointly in respect of their shares. All such properties inherited by both of them remained joint in the hands of the two. Since then, plaintiff and defendant carried on their joint business at more than one place in the name and style of firm M/s. Bhajanlal Bala Bux. The said firm had its headquarter at Khedli, District Alwar and owned huge movable and immovable properties. Properties, which were sought to be partitioned and of which possession was sought to be taken, were enumerated in Schedule 'Ka' appended to plaint. Property described at Serial No. 4 of the Schedule 'Ka' appended to plaint had fallen in the share of the plaintiff by an award between the parties dated 29.05.1938. Since it was not possible for the parties to carry on the business together, the firm was closed down in the year 1939. Both the parties entered into an agreement on 30.05.1939 which was registered on 01.06.1939 whereby they decided to refer their disputes to the arbitration. Shri Hira Lal, Shri Bhola Nath and Shri Johari Lal were appointed as arbitrators to give award and settle the dispute regarding all the movable and immovable properties of the firm. Arbitrators gave their first award on 31.07.1939 giving the movable properties of the firm to defendant and directing him to pay a sum of Rs. 20,201/ - to plaintiff in lieu thereof. Second award with regard to immovable assets of the firm was passed on 12.05.1941. Properties enumerated at Serial No. 4 to 9 in the Schedule 'Ka' appended to plaint were declared to be held by the firm and it was further declared that heirs of Buddhilal should not be affected so far as these properties are concerned. With regard to properties enumerated at Serial No. 1 to 3 in the Schedule 'Ka' appended to plaint, plaintiff was found to be entitled to have his share and possession of the properties by the award dated 12.05.1941. Defendant, in pursuance of the direction made in the first award dated 31.07.1939, paid a sum of Rs. 15,001/ - to plaintiff in lieu of movable properties and a sum of Rs. 5,200/ - remained outstanding. Defendant then became the owner of the firm and name of the firm was also changed to M/s. Bhajan Lal Magan Lal.

(3.) It was further pleaded that when defendant failed to carry out directions given by arbitrators under the aforesaid two awards dated 31.07.1939 and 12.05.1941, plaintiff filed two suits in the Court of District Judge, Alwar, one for recovery of the sum, which remained outstanding pursuant to the first award and another for possession of immovable properties as per the award dated 12.05.1941. These two suits were registered at Serial No. 3 and 4 of 1942 respectively. District Judge, Alwar consolidated both the suits and disposed off them together vide judgment dated 25.05.1955. While Suit No. 3 of 1942 was decreed for a sum of Rs. 5,200/ - in favour of plaintiff, Suit No. 4 of 1942 was dismissed on the premise that award dated 12.05.1941 had not been registered, therefore, it being an inadmissible piece of evidence, suit could not be decreed. Plaintiff preferred an appeal against the aforesaid judgment and decree before this Court. Single Bench of this Court dismissed the appeal vide judgment dated 12.12.1960 and upheld judgment of District Judge, Alwar dated 25.05.1955. Special appeal filed against judgment of Single Bench of this Court was also dismissed by Division Bench of this Court vide judgment dated 27.04.1965. The plaintiff had been, up till now, contesting on the basis of award dated 12.05.1941, but since his claim had been rejected on the ground of award being inadmissible, he filed present suit on 31.05.1966 claiming his right on the basis of title. Plaintiff prayed for partition of properties described at Serial No. 1, 2 and 3 of the Schedule 'Ka' appended to plaint and also prayed for possession of property described at Serial No. 4 in the aforesaid Schedule 'Ka'. He also prayed for mesne profit amounting to Rs. 1,500/ - for properties of the first category and a sum of Rs. 500/ - per year as future mesne profit. With regard to property described at Serial No. 4 of Schedule 'Ka' appended to plaint, he also claimed Rs. 900/ - as mesne profit for the period prior to institution of suit and Rs. 300/ - per year as future mesne profit. As regards limitation, plea of plaintiff was that since he has been prosecuting his claim with all sincerity and reasonableness in the court of the District Judge, Alwar and before this Court from 1942 to 1965, he was entitled to benefit of provisions of Sec. 14 of the Limitation Act, 1963. Plaintiff also pleaded that the points, which had already been decided in the previous Suits No. 3 and 4 of 1942 by District Judge, Alwar and this Court, on merits, had become res judicata against defendant now.