Bhoop Singh & Ors. vs Balwant Singh & Ors.
2010 Latest Caselaw 2306 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+             RSA NO.71/2010 & CM Nos.6685-86/2010

                                  Date of Decision: April 30, 2010


      BHOOP SINGH & ORS.                            ..... Appellants
                    Through:             Mr.S.S.Tomar, Advocate.

                    versus


      BALWANT SINGH & ORS.                            ..... Respondents
                   Through:              Nemo.

      %
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?
     (2) To be referred to the reporter or not?              Yes
     (3) Whether the judgment should be reported
          in the Digest ?                                    Yes

                             JUDGMENT

ARUNA SURESH, J. (Oral)

1. Checkered history of this case is that Bale Ram, father of the

appellants, filed a civil suit seeking permanent injunction against

respondent No.1 and Sh.Bhalle (since deceased) for restraining them from

interfering or making any encroachment or raising any construction over the

vacant plot of land measuring 100x50 square yards situated in Village

Daryapur Kalan, Delhi, which they claimed to be theirs'. The suit was filed

on 17th June, 1980. Civil Judge decreed the suit of Bale Ram.

Respondents filed an appeal being RCA No.28/1995 against the said

judgment and decree of the Civil Judge in the First Appellate Court, which

was dismissed vide order dated 23rd November, 1982. Appellate Court

vide its order dated 5th March, 1986 remanded back the case to the Lower

court for disposing it afresh with the directions that Lower Court would

permit Bale Ram to file a map of the plot in dispute, further record

statements of the parties with regard to correctness of the map as the plot in

question was not properly identified and then decide the case afresh.

2. After remand of the case, Trial Court appointed a Local

Commissioner for identification of the suit property. Trial Court assessed

the report of the Local Commissioner analysed evidence of the parties,

finding no merits dismissed the suit of Bale Ram. While dismissing the

suit, Court recorded that land belonged to Gaon Sabha, and Gaon Sabha had

already filed a suit against the parties under Section 86A of the Delhi Land

Reforms Act for possession of the suit land. Parties also could not disclose

khasra number of the disputed property. Trial Court also found some

names cancelled in the list of persons who had encroached upon the Gaon

Sabha but original of the said list was not produced before the Local

Commissioner. Report of the Local Commissioner was based on inspection

report of Halka Patwari, prepared by him for perusal of his senior officers.

Court observed that report of Halka Patwari had no Patwari validity/sanctity

on the date when Local Commissioner allegedly inspected the spot.

3. Appeal was preferred against the judgment and decree of the

Trial Court. Appellate Court in a very short order dismissed the appeal

observing that both the parties were in unauthorized occupation of the land

in suit and the property had not been demarcated by the appellant and no

khasra number had been mentioned in the plaint. Considering that Trial

Court did not accept the report of the Local Commissioner, appellate court

found no merits in the appeal.

4. Appellants are the legal heirs of Bale Ram. Appellants have

tried to raise certain substantial questions of law in the appeal to meet

provisions of Section 100 of the Code of Civil Procedure. However, none

of the suggested questions of law are substantial questions of law. They are

all questions of fact. Judgment and decree of the Trial Court, as well as of

the Appellate Court, has been challenged on the basis of oral evidence and

documentary evidence adduced on record. It is not the case of the

appellants that the courts below had given any perverse findings of facts.

Both the parties are in unauthorized occupation of the property belonging to

Gaon Sabha and appellants failed to properly demarcate and identify the

suit property. In the absence of proper identification of the suit property,

Trial Court rightly appreciated evidence of the parties while dismissing the

suit.

5. As pointed out above, Gaon Sabha has already initiated

proceedings against the parties to the appeal under the Delhi Land Reforms

Act for taking back possession of its land.

6. Mr.S.S.Tomar, counsel appearing on behalf of appellants has

argued that the Civil Judge while giving findings on issue No. 1 and other

issues in favour of the appellants had committed an illegality when it

declined to grant relief to the appellants. He further argued that First

Appellate Court acted in an illegal manner as it did not touch ground No.1

in the grounds of appeal filed before it, wherein the entire facts related to

identification of the suit property, its khasra number, size, location etc. had

been stated and identification of the suit property had been duly proved and

false stand of the defendant had also been exposed. He has submitted that

First Appellate court acted in an illegal manner in disturbing some of the

findings of the Lower Court, which were not under challenge.

7. I find no force in the submissions of counsel for the

appellants.

8. Trial Court gave a well reasoned finding for declining relief

of injunction as prayed. It is the discretion of the court to grant permanent

injunction on facts and circumstances of a given case in a reasonable

manner. Since in this case, appellants themselves were found to be

unauthorized occupants, they had no better title in the suit property than that

of the respondents. Besides, since property was not properly identified

before the Trial Court, despite the fact that case was remanded back by the

First Appellate Court with the directions to appellants to file a site plan,

which they did not file at the relevant stage. Findings on other issues are

fact findings regarding possession and nature of possession of a piece of

land which remained unidentified. Court was right in declining relief of

injunction as prayed, specially when Gaon Sabha has already initiated

proceedings of eviction against the parties.

9. Admittedly, no application was filed before the First

Appellate Court for permission to lead additional evidence, therefore,

Appellate Court was within its rights not to consider ground No.1 of the

appeal, whereby appellants had tried to identify the property by its khasra

number, size, location etc.

10. Since suit of the appellants was dismissed on appreciation of

oral, documentary evidence as well on the facts and circumstances of the

case, no substantial question of law is involved in this appeal, I find no

merits in the same and it is accordingly dismissed.

CM Nos.6685/2010 (for exemption) & 6686/2010 (for stay)

11. With dismissal of the appeal, both these applications have

become infructuous. Hence, the same are accordingly dismissed.

(ARUNA SURESH) JUDGE

April 30, 2010 sb