* HIGH COURT OF DELHI AT NEW DELHI
+ RSA 126/2012 & CM No.12973/2012
Date of Decision : 18.11.2013
NAND LAL ..... Appellant
Through: Mr.Kumar Mukesh, Advocate.
versus
RITA GAURI & ORS. ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal filed by the appellant against the judgment and decree dated 24.04.2012 passed by the learned ADJ in RCA No.30/2005.
2. I have heard the learned counsel for the appellant with regard to formulation of question of law. However, the formulation which has been advanced by the learned counsel for the appellant with regard to the submission as to whether agreement to sell in question creates any right, title or interest in the suit property or the occupation of the premises by RSA No.126/2012 Page 1 of 5 the appellant as a tenant which was subsequently perfected by an agreement to sell do not raise any question of law much less a substantial question of law.
3. I have also perused both the judgment of the trial court as well as of the first appellate court. I am also not satisfied that the case involves any substantial question of law. However, in order to appreciate the controversy between the parties it would be necessary to give a brief background of the case.
4. The present appellant filed a suit for cancellation of sale deed dated 21.07.1971 purported to have been executed by R-2 in favour of R-1. Incidentally, it may be pertinent to mention here that R-2/Smt.Sumitra Devi is purported to have purchased the suit property from one Ishwar Dass vide sale deed dated 26.06.1970 and registered on 27.06.1970. The title of Ishwar Das was further traced to one Sh.Ram Gopal. Although the case of the present appellant was that Ram Gopal never transacted the property to Sh.Ishwar Dass. It was also the case of the appellant that he was held in occupation of the suit property bearing no.F-61/A, Verinder Nagar, New Delhi. Right from 1969 and an agreement to sell dated 05.01.1979 was purportedly executed in his favour by Sh.Ram Gopal. RSA No.126/2012 Page 2 of 5 On the basis of the said agreement to sell, coupled with the possession, the appellant was claiming himself to be the owner of the property and accordingly sought cancellation of the sale deed dated 21.07.1971 purported to have been executed in favour of R-1 by R-2. It may also be pertinent to mention here that although the sale deed which was purportedly executed by R-2 in favour of R-1 was showing property no.F- 20/5 Verinder Nagar but subsequently a deed of correction was purportedly executed by Sh.Ishwar Dass as well as by R-2 showing the actual property was F-61/A, Verinder Nagar, New Delhi and thus impinging on the title of the appellant.
5. One Smt.Joginder Kaur was also made a party in the suit as defendant no.3. However, no averment with regard to her was made in the entire plaint. R-1 and R-2 filed their written statement and contested the claim of the appellant. On the pleadings of the parties, a number of issues were framed and one of the issues which was issue no.10 with regard to the fact as to whether the appellant/plaintiff was entitled to relief claimed by him with regard to the cancellation of the sale deed dated 21.07.1971.
RSA No.126/2012 Page 3 of 5
6. Both the parties adduced their respective evidence. The learned trial court after appreciating the evidence, decided the said issue against the present appellant on the ground that the appellant in order to seek the cancellation of sale deed dated 21.07.1971 purported to have been executed by R-2 in favour of R-1, it ought to have shown that he was the owner of the suit property. It was held by the trial court that the appellant had miserably failed to establish that he is the owner of the suit property bearing no.F-61/A, Verinder Nagar, Delhi inasmuch as the agreement to sell did not confer any title on him. Moreover, the original agreement was not proved before the court.
7. The appellant feeling aggrieved by the aforesaid judgment and decree, preferred an appeal and the appellate court visited the entire evidence afresh and concurred with the learned trial court. Still not feeling satisfied, the appellant has filed the present regular second appeal.
8. The second appeal is permissible only when a substantial question of law is involved. The question as to whether the appellant was the owner or not is a question of fact which has been ruled against him by a concurrent finding of the two courts below. This does not raise any substantial question of law as is sought to be submitted by the learned RSA No.126/2012 Page 4 of 5 counsel for the appellant before this court. Accordingly, this appeal has no merit and the same is dismissed.
V.K. SHALI, J.
NOVEMBER 18, 2013 dm RSA No.126/2012 Page 5 of 5