Shri Jai Charan @ Jai Chand & Anr. vs Shri Mahender Kumar Aggarwal
2010 Latest Caselaw 3657 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                 Date of Judgment : 6th of August, 2010


+          RSA No.115/2009 & CM No.11989/2009



SHRI JAI CHARAN @ JAI CHAND & ANR.
                               ...........Appellants
             Through: Mr.Mahmood Hassan, Advocate.

                   Versus

SHRI MAHENDER KUMAR AGGARWAL
                         ..........Respondent
           Through: Ms.Ritu Singh Mann and Mr.Brijesh
                    Sharma, Advocates.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers 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

INDERMEET KAUR, J.(Oral)

1.     Trial Judge on 10.7.2008 had decreed the suit of the

plaintiff/respondent.   This was a suit instituted for recovery of

possession of a piece of land measuring 5 Biswas (250 sq. yds.)

situated in Village Khichripur, Illaqa Shahdara, forming part of

Khasra No.76/2 (hereinafter referred to as the „suit property‟) in

March 1998.        The defendant had illegally occupied the suit

property representing herself to be the owner.

2.     The main defence of the defendant was on the identity of the

suit property; his submission being that the suit property does not

fall in Khasra No.76/2 but it falls under Khasra No.76/3. Further

that Khasra No.76/2 was fully built up and Khasra No.76/3 is

RSA No.115/2009                                            Page 1 of 4
 vacant; defendant claimed ownership of the suit property stating

that the same falls in Khasra No.76/3.

3.    Trial Judge on the pleadings of the parties has framed six

issues.    Issue no.2 is relevant for deciding this appeal. It related

to the averment as to whether the suit property was comprised in

Khasra No.76/2 or not.        The demarcation of the suit property had

been carried out by the Tehsildar and was proved through the

testimony of PW-2 who was the Kanoongo of the area; the report

was proved as Ex.P-12 along with the map of property showing the

demarcation proceedings. The site plan of the property has been

proved as Ex.P-1.     Learned counsel for the respondent has placed

on record the certified copy of the cross-examination of DW-2

wherein DW-2 has admitted that the site plan Ex. P-1 is correct; it

is submitted that this witness was of the appellant/defendant

himself.

4.    This demarcation report was accepted by Trial Judge which

had categorically stated that the suit property falls in Khasra

No.76/2 and not in Khasra no.76/3; further the defendant has not

produced any document of title. Suit was decreed.

5.    The first Appellate Court vide impugned judgment dated

6.4.2009 had endorsed the finding of the Trial Judge. Attention

has been drawn to para 6 of the impugned judgment which inter

alia reads as follows:

      "The only controversy in this appeal is that the suit property does
      not lie in Khasra no.76/2 but it is in Khasra no.76/3. It iis alleged
      that Ld. Trial Court has committed an error in not appreciating the
      evidence of parties. It is conceded by Ld. Counsels of parties that
      there is no other controversy."



6.    It is pointed out by learned counsel for the respondent that

RSA No.115/2009                                                        Page 2 of 4
 the only dispute raised by the appellant/defendant in the first

Appellate Court was about the identity of the suit property as to

whether the same falls in Khasra No.76/2 or 76/3 and the first

Appellate Court had also endorsed the finding of the first Court. It

is submitted that these are factual findings which cannot be gone

into by the second Appellate Court.

7.    Learned counsel for the appellant has placed reliance upon a

judgment of the Supreme Court reported in 2007(5) SCC 669

P.Chandrasekharan Vs. S. Kanakarajan to support his submission

that the second Appellate Court while examining a substantial

question of law, under the provisions of Section 100 of the CPC,

can go into the interpretation of the document which goes to the

root of the title of the property and where such a document is

misread or mis-appreciated the High Court can interfere in second

appeal.

8.    This judgment does not come to the aid of the appellant.

Learned counsel for the appellant has not been able to point out

any discrepancy in the document of title on which attention has

been drawn.       The sale deed (Ex.P-4 page 133 of the paper book)

states that the vender had sold 5 bighas out of Khasra No.76/2

situated in Village Khichripur, Illaqa    Shahdara to the vendee

namely Shri Ram, father of the plaintiff.       The land had been

described as Ahata No.181 measuring 250 sq. yards. The site plan

(Ex.P-1 page 140 of paper book) relied upon by the plaintiff also

shows that the suit property measures 250 sq. yards is contained in

Khasra No.76/2 situated in the area of Khichripur, Illaqa Shahdara.

The entire Khasra i.e. Khasra No.76/2 had been depicted in the site

plan with a coloured portion of 250 sq. yards in the corner i.e. the

RSA No.115/2009                                           Page 3 of 4
 suit property. There is no discrepancy in the said two documents

i.e. Ex.P-1 and Ex.P-4 as has been urged by the learned counsel for

the appellant. Both the documents describe the suit property as

contained in Khasra No.76/2 in Village Khichripur, measuring 250

sq. yards.        There is no misconstruction or misreading of this

document of title which in any manner raises any substantial

question of law. They are, in fact, in conformity with one another.

9.     No substantial question of law has arisen.     The appeal is

without any merit. The appeal as also the pending application is

dismissed in limine.



                                          INDERMEET KAUR, J.

AUGUST 06, 2010 nandan