The Delhi High Court dismissed an appeal filed under Section 100 of the Code of Civil Procedure 1908 (CPC). The Court observed that the averment that the ownership of the appellant was undisputed only stems from the fact the respondent proceeded ex parte before the learned SCJ; that does not do away with the requirement of the appellant having to prove the case set out in the plaint in the first instance.
Brief Facts:
In the plaint instituted by her, the appellant claimed to be the owner and in possession of a property. The said property was stated to have been purchased by the appellant’s father-in-law Karan Singh under a registered Sale Deed. Karan Singh was stated to have executed a Will in the appellant’s favour. Admittedly, the appellant was claiming titular rights in respect of the suit property under the said Will. The case of the appellant was that, on the request of Bhagwati Devi, the mother of the respondent and a distant relative of the appellant, Karan Singh, he had allowed Bhagwati Devi to use a portion of the aforenoted property as a licensee. The appellant contended that consequent on the demise of Bhagwati Devi, the suit property was in the occupation and was being used by the respondent, Jagdish. The appellant claimed to be in requirement of the suit property. Accordingly, the plaint averred that, in July 2020, the appellant requested the respondent to vacate the suit property. On the respondent continuing to occupy the suit property, the appellant instituted a suit against the respondent. The suit was dismissed by the learned Senior Civil Judge. The appellant appealed against the aforenoted decision of the learned SCJ to the learned Additional District Judge which was dismissed. Hence, the present appeal.
Contentions of the Appellant:
The Learned Counsel for the Appellant submitted that the learned ADJ failed to take note of the application filed by the appellant under Order XLI Rule 27 of the CPC, seeking to place on record additional evidence.
The Court noted that Section 68 of the Evidence Act requires at least one attesting witness to be called in the witness box before the Will could be used in evidence. The concurrent finding of the learned SCJ and the learned ADJ that the appellant had not succeeded in proving the Will based on which he was claiming title in the suit property is, therefore, factually and legally correct, and does not call for any interference. The prayer in the application filed by the appellant under Order XLI Rule 27 of the CPC was that she be permitted to lead additional evidence with regard to proving the Will as per law, but there is no reference in the application, to any evidence that the appellant was in a position to lead.
The Court observed that the appellant urged before the learned ADJ was that, though she was not in a position to prove the Will by producing attesting witnesses, the circumstances of the case and the fact that the ownership of the appellant was undisputed made out a case for interference. The Court said that the averment that the ownership of the appellant was undisputed only stems from the fact the respondent proceeded ex parte before the learned SCJ; that does not do away with the requirement of the appellant having to prove the case set out in the plaint in the first instance.
The Decision of the Court:
The Delhi High Court, dismissing the appeal, held that no substantial question of law, within the meaning of either circumstance, arises in the present case.
Case Title: Angoori Devi v Jagdish
Coram: Hon’ble Justice C. Hari Shankar
Case No.: RSA 227/2023
Advocate for the Appellant: Mr. Sandeep Khatri
Advocate for the Respondents: None
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