Delhi High Court
Khem Chand vs Hari Kumar Sharma @ Pappu on 12 September, 2008
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 188/2007
KHEM CHAND ..... Appellant
Through: Mr. C.B.Singh, Advocate
versus
HARI KUMAR SHARMA @ PAPPU ..... Respondent
Through: Mr. J.K.Jain, Advocate
DATE OF DECISION
% 12.09.2008
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE J.R.MIDHA
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.(Oral)
1. Though Trial Court Record has not been
summoned but since the relevant pleadings of the parties
have been annexed along with the appeal and learned
counsel for the parties have, during course of hearing, led us
through the evidence of the witnesses of the parties, as
RFA No.188/07 Page 1 of 6
agreed by learned counsel for the parties the appeal has been
heard for final disposal.
2. Admitted case of the parties is that Goverdhan had
2 sons namely Prehlad and Khem Chand. Prehlad has died.
The respondent, Hari Kumar Sharma, is his son. It is also the
further admitted case of the parties that on his death
properties of Goverdhan devolved upon his two sons, Khem
Chand and Prehlad. It is also the common case of the parties
that on 21.10.1984 a partition deed Ex.DW-1/2, was executed
partitioning the estate of Goverdhan.
3. The disputed position between the parties is the
claim of the appellant Khem Chand who sued as a plaintiff by
asserting that the agreement Ex.DW-1/2 was not
implemented during the life time of Prehlad and being not
given effect to, on 5.1.1995, vide Ex.PW-1/1, another family
settlement was executed to partition the estate of Late
Goverdhan. Claim was made in the suit under Ex.PW-1/1.
4. Thus, on the dispute between the parties, the
obvious issue which arose for consideration was, whether
Ex.DW-1/2 was implemented during the life time of the
executants i.e. Prehlad and Khem Chand and if not, whether
the deed of partition Ex.PW-1/1, was executed.
RFA No.188/07 Page 2 of 6
5. The learned Trial Judge has held in favour of Hari
Kumar Sharma, the defendant.
6. The reasoning of the learned Trial Judge is as
under:-
A. Ex.PW-1/1, the disputed partition deed dated
5.1.1995 does not contain any recital therein that the earlier
family settlement dated 21.10.1984, Ex.DW-1/2, was not
implemented. In fact, there is no mention of Ex.DW-1/2 in
Ex.PW-1/1. The conclusion drawn from the aforesaid feature
of Ex.PW-1/1 is that the document is a created document.
B. Vijay Pathak (examined as DW-1) (We note that
two witnesses have been examined as DW-1, the other is the
defendant himself) a common acquaintance of both the
parties and a schoolmate of the son of Khem Chand gave
deposition in support of the defendant to the effect that the
parties were in respective possession of the properties which
were assigned to Prehlad and Khem Chand under Ex.DW-1/2
i.e. the partition deed dated 21.10.1984. The conclusion
drawn by the learned Trial Judge is that the respective
possession of the parties evidences the implementation of the
partition effected under Ex.DW-1/2.
C. The third reasoning of the learned Trial Judge is
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that the signatures of the PW-2 on Ex.PW-1/1 as a witness are
not his. The said finding has been returned on a visual
comparison of the signatures of PW-2 on his testimony after
his testimony was recorded viz-a-viz his signatures on Ex.PW-
1/1.
7. At the hearing today, learned counsel for the
appellant has urged two points. The first point urged is that
as recorded in the order dated 27.7.2005 the parties had
agreed to a re-partition with each taking 50% share therein.
Contention urged is that said order concluded the dispute
between the parties on the issue of partition.
8. The second contention urged is that the learned
Trial Judge has returned findings which are nothing but
conjectures and surmises.
9. Pertaining to the first plea, suffice would it be to
state that the order dated 27.7.2005 records a submission
made by learned counsel for the plaintiff that the parties have
compromised and have agreed to take 50% share each in the
properties and an architect be appointed. We note that the
said order notes the presence of the respondent in person. It
does not record the respondent's consent thereto.
10. It is obvious that the learned Trial Judge has
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merely recorded a stand of the appellant/plaintiff and no
more.
11. The first contention urged is thus held to be
without any substance.
12. On the second plea, suffice would it be to state
that the findings returned by the learned Trial Judge are
neither surmises nor conjectures. Indeed, if Ex.DW-1/2, the
partition dated 21.10.1984, was not implemented, reference
of said fact would have found a mention in Ex.PW-1/1. Non
mention of said fact gives rise to an inference that the
document in question is not a genuine document.
13. The second line of reasoning adopted by the
learned Trial Judge is equally correct. The case of the plaintiff
was that the need to execute Ex.PW-1/1 arose because
Ex.DW-1/2 was not implemented. The evidence on record
established that Ex.DW-1/2 was implemented and parties
went into respective possession.
14. In our opinion these two reasons are enough to
sustain the finding recorded by the learned Trial Judge and we
need not go into the issue whether the signatures of PW-2 on
Ex.PW-1/1 were his or not.
15. We find no merits in the appeal.
RFA No.188/07 Page 5 of 6
16. Noting that the parties come from a rural
background, expressing displeasure at the conduct of the
appellant who is unnecessarily troubling his nephew we
refrain from imposing any cost.
PRADEEP NANDRAJOG, J.
J.R.MIDHA, J.
SEPTEMBER 12, 2008
mm
