OSA No. 4003 of 2013. Case: Tara Kaushal Vs Bal Raj. Himachal Pradesh High Court
| Case Number | OSA No. 4003 of 2013 |
| Counsel | For Appellant: K.D. Sood, Senior Advocate and Sandeep Pandey, Advocate and For Respondents: Bhupender Gupta, Senior Advocate and Ajit Jaswal, Advocate |
| Judges | Mansoor Ahmad Mir, C.J. and Tarlok Singh Chauhan, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order VII Rule 1; Order XIV Rules 14, 2; Order XX Rules 19, 20, 4(2), 5, 9 |
| Judgement Date | December 18, 2014 |
| Court | Himachal Pradesh High Court |
Judgment:
Tarlok Singh Chauhan, J.
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The appellants are the plaintiffs and have filed the present original side appeal against the judgement and decree dated 27.9.2013 passed by the learned Single Judge of this court in Civil Suit No. 65 of 2000.
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Plaintiffs- appellants filed the suit seeking a decree for the following reliefs:--
"(i) That the plaintiffs and defendant Nos. 1 to 3 have 1/8th share each in the following properties:--
(a) Shop situated on Khasra No. 496/1 Khata Khatauni No. 44 min/144, measuring 0-00-52 hectares on which single storey shop is standing, according to the jamabandi for 1984-85 of mauza Sarkaghat Distt. Mandi. The shop is on area measuring 0-00-25 hectares;
(b) Double storeyed shops on Khasra No. 564 and 502 in khata khatauni No. 205/460 min in Abadi measuring 0-00-65 and 0-00-63 hectares, in all measuring 0-01-28 hectares according to jamabandi for 1984-85 of mauza Sarkaghat, Distt. Mandi;
(c) House standing on Khasra No. 497/1 which is three storeyed on area measuring 0-00-22 hectares in Khata Khatauni No. 474-426 according to the Jamabandi for the year 1984-85 of mauza Sarkaghat, Distt. Mandi.
(d) Shop-cum-house on Khasra No. 501/1 measuring 0-00-12 hectares, Khata Khatauni No. 174/426 according to Jamabandi for 1984-85 of mauza Sarkaghat, Distt. Mandi.
(e) Three storyed house on Khasra No. 503/1 measuring 0-00-16 hectares in Khata Khatauni No. 174/426 according to Jamabandi for 1984-85 of mauza Sarkaghat, Distt. Mandi.
(f) Shop standing on Khasra No. 506/1, measuring 0-00-10 hectares in Khata Khatauni No. 175/427 according to Jamabandi for the year 1984-85 of Muaza Sarkaghat Distt. Mandi.
(g) Three storeyed shop-cum-house on khasra No. 570, khata khatauni No. 100/262 min measuring 0-00-90 hectares according to Misal Hakiat Bandobasat Jadid of Sarkaghat, Distt. Mandi.
(h) Double storeyed shop-cum-residence on Khasra No. 563 Khata Khatauni No. 174/426 measuring 0-00-36 hectares according to Jamabandi for 1984-85 mauza Sarkaghat, Distt. Mandi.
(i) Two plots of land, compromised in Khasra No. 465 measuring 47-05 Sq. yards and 1191 measuring 22-08 Sq. yards in Mauja Una, Tehsil and District Una according to the jamabandi for the year 1976-77 and the joint Hindu Family M/s. Ram Rakha Mall Kaushal and Sons, Sarkaghat and a decree for partition and separate possession of their 5/8th share in the said properties by metes and bounds, be passed in their favour.
(ii) That the plaintiffs be also granted a decree for rendition of accounts of the Joint Hindu Family business M/s. Ram Rakha Mall Kaushal and sons and entitled to their 5/8th share in the said business.
(iii) That for partition and separate possession and for rendition of accounts local commissioner may be appointed to go into the rendition of accounts and divide their property by metes and bounds.
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According to the appellants, the pedigree table of the parties is as follows:--
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Though the aforesaid pedigree table has been admitted in part, but according to the defendants-respondents, this pedigree table is incomplete and the same is as follows:--
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The plaintiffs pleaded that the common ancestor of the parties was one Shri Goru Mall, who had two sons Telu Ram and Ram Rakha Mall. This fact has been disputed by the defendants and submitted that there is third son also namely Dhani Ram and that the parties to the suit constitute a Joint Hindu Family and carried on the business of Kariana, cloth, iron and hardware etc. under the name and style of M/s. Telu Ram Ram Rakha Mall at Sarkaghat, District Mandi. In 1970, two brothers Telu Ram and Ram Rakha Mall separated. Telu Ram started his business in the name and style of M/s. Telu Ram Amritsaria Mall at Sarkaghat while Ram Rakha Mall Kaushal started his business in the name and style of M/s. Ram Rakha Mall Kaushal and sons at Sarkaghat. Shri Ram Rakha Mall constituted a Joint Hindu Family of the plaintiffs namely Hushan Kaushal, Tara Kaushal, Dinesh Kaushal, Bachni Devi and Usha Rani and defendant Nos. 1 to 3 namely Bal Raj, Ramesh and Subhash, who continued the business of Karyana, cloth and later on added sale of cement etc. The Joint Hindu Family business was run as a partnership business between Ram Rakha Mall, Bal Raj, Husan and Tara Chand under deed of partnership Ext. DW1/A, which was executed on 2.9.1970. It is further pleaded that plaintiffs and defendant Nos. 1 to 3 and Shri Ram Rakha Mal had a joint mess and common residence at that relevant point of time and Shri Ram Rakha Mall was the head of the family. Ram Rakha Mall died on 12.8.1983. Since he was not keeping good health, he retired from the Hindu Undivided Family firm namely Ram Rakha Mall Kaushal and Sons and Shri Satish Kumar son of Bal Raj was inducted as partner in the ancestral business, but the Joint Hindu Family continued as such. There is no dispute about the death of Ram Rakha Mall. On the death of Ram Rakha Mall, his estate devolved upon the plaintiffs and defendant Nos. 1 to 3 in equal shares and the Joint Hindu Family business M/s. Ram Rakha Mall Kaushal and sons continued as such. Defendant No. 1 Bal Raj was eldest brother and head of the family, he became Karta of HUF in place of Shri Ram Rakha Mall. It has been further pleaded that Shri Telu Ram had separated himself from his brother Shri Ram Rakha Mal and had also started his separate business. He died in the year 1975 and his estate devolved upon Shri Suriya Mall @ Amritsaria Mall, defendant No. 6 who is in possession of the estate. The plaintiffs or defendant Nos. 1 to 5 have no common concern in the estate of Shri Telu Ram which has been inherited by Shri Amritsaria Mall. The plaintiffs pleaded that partition took place between Telu Ram and Ram Rakha Mall. The share of Ram Rakha Mall is jointly held by the plaintiffs and defendant Nos. 1 to 5 in the following manner:
1. Shop situated in Khasra No. 496/1, Khata Khatauni No. 44 min. 144, measuring 0-00-52 hectares on which single storey shop is standing, according to the jamabandi for 1984-85 of mauza Sarkaghat, District Mandi. The shop is on area measuring 0-00-25 hectares;
2. Double storeyed shops on Khasra No. 564 and 502 in Khata Khatauni No. 205/460 min in Abadi measuring 0-00-65 and 0-00-63 hectares in all measuring 0-01-28 hectares according to Jamabandi for 1984-85 of mauza Sarkaghat, District Mandi;
3. House standing on Khasra No. 497/1 which is three storeyed on area measuring 0-00-22 hectares in Khata Khatauni No. 474-426 according to the Jamabandi for the year 1984-85 of mauza Sarkaghat, Distt. Mandi.
4. Shop-cum-house on Khasra No. 501/1 measuring 0-00-12 hectares, Khata Khatauni No. 174/426 according to Jamabandi for 1984-85 of mauza Sarkaghat, Distt. Mandi.
5. Three storyed house on Khasra No. 503/1 measuring 0-00-16 hectares in Khata Khatauni No. 174/426 according to Jamabandi for 1984-85 of mauza Sarkaghat, Distt. Mandi.
6. Shop standing on Khasra No. 506/1, measuring 0-00-10 hectares in Khata Khatauni No. 175/427 according to Jamabandi for the year 1984-85 of Muaza Sarkaghat Distt. Mandi.
7. Three storeyed shop-cum-house on khasra No. 570, khata khatauni No. 100/262 min measuring 0-00-90 hectares according to Misal Hakiat Bandobasat Jadid of Sarkaghat, Distt. Mandi.
8. Double storeyed shop-cum-residence on Khasra No. 563 Khata Khatauni No. 174/426 measuring 0-00-36 hectares according to Jamabandi for 1984-85 mauza Sarkaghat, Distt. Mandi.
9. Land comprised in Khasra No. 1165, 34, 36, and 2339 measuring 47.05 sq. yards in mauza Kotla Khurd, Tehsil and District Una according to Jamabandi for the year 1976-77.
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The aforesaid properties were inherited by Shri Ram Rakha Mall and after his death, the plaintiffs and defendant Nos. 1 to 3 have 1/8th share each in the same. The plaintiffs are in possession of shops and residential houses situated over khasra No. 570. All other properties except two plots in Una, which are lying vacant, are in possession of defendant No. 1 and his sons, defendant Nos. 4 and 5. The properties are liable to be partitioned by metes and bounds and the plaintiff and defendants No. 1 to 3 are entitled to separate possession of the properties, as mentioned above.
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On partition of the properties between Telu Ram and Ram Rakha Mall, Shri Ram Rakha Mall continued the business in the name and style of M/s. Ram Rakha Mall Kaushal and Sons. The business was of kariana, cloth etc. and cement was later on added to it. The business was carried on in partnership, the terms of which were reduced into writing vide partnership deed Ext. D1 dated 2.9.1970, vide which Ram Rakha Mall had 40% share, Bal Raj 40%, Husan Chand and Tara Chand 10% each share. Defendant No. 1 Bal Raj was the Karta and managing the whole affairs. Shri Ram Rakha Mall because of his ill health, had retired from the partnership on 1.4.1983 and the business continued in the name and style of M/s. Ram Rakha Mall Kaushal and Sons with Bal Raj having 40% share, Satish Kumar with 25% share, Husan Chand 25% and Tara Chand 10% share. This partnership business was Joint Hindu Family Business and continued till 15.3.1990 when Bal Raj defendant converted the business into another partnership business with three partners namely Bal Raj defendant No. 1 and his two sons Satish Kumar and Sanjeev Kumar. In this business, Bal Raj has 40% and Satish Kumar and Sanjeev Kumar 30% shares each. The business was being run in the name and style of the original firm i.e. M/s. Ram Rakha Mal Kaushal and Sons at Sarkaghat with...
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