Ram Chander Rathi vs Rajinder Parshad
2010 Latest Caselaw 3945 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Date of Judgment : 26.08.2010

+                       R.S.A. No. 122/2008

RAM CHANDER RATHI
                                     ...........Appellant
                     Through: Mr. Rajinder Aggarwal, Advocate.

                     Versus

RAJINDER PARSHAD                      .......Respondent
             Through:           Mr. Rahul Gupta with Mr. Surkhar
                                Dasi and Ms. Ira Gupta, 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.     This second appeal has impugned the judgment and decree

dated 11.12.2009 which had endorsed the finding of the Civil Judge

dated 22.09.2006 dismissing the suit of the plaintiff on issue nos.

1,2 and 3.


2.     Briefly stated the factual matrix of the case is as follows:

       1.    The plaintiff/appellant had filed a suit for permanent

and mandatory injunction as also for recovery of damages.             The

defendant/respondent is stated to be the tenant under the

appellant in respect of the suit property at the ground floor of

Katra Rathi as shown in red colour in the site plan at a monthly

rent of Rs. 150/-. The allegation was that the defendant had raised

a platform in front of the shop which was shown in green colour in

the said site plan. In July, 1997, the defendant had illegally and

wrongfully encroached the platform and raised a glass glazed panel
R.S.A. No.122/2008                                            Page 1 of 4
 damaging the property. A legal notice dated 27.05.2000 was sent

to the respondent.

      2.     The written statement filed by the defendant had

contested the litigation.      It was stated that there has been no

encroachment in the suit property and the suit premises were in

the same state as when they had been taken on rent by the

defendant in the year 1992.       It was further submitted that only

some furniture and fixtures had been replaced in the year 1992-

1993 which had not changed the character of the suit property.

      3.     The trial judge had framed six issues which inter alia

reads as follows:

             i.     Whether there existed any cause of action in favour of
             the plaintiff for filing the present suit? OPP.

             ii.   Whether the suit filed by the plaintiff is barred by
             time? Onus on parties.

             iii)  Whether the plaintiff has waived his right by
             acquiescence, latches and conduct as claimed in the written
             statement? OPD.

             iv)  Whether the plaintiff is entitled to the relief of
             mandatory injunction as claimed in the plaint? OPP.

             v)    Whether the plaintiff is entitled to recover and
             amount of Rs. 72,000/- on account of damages from the
             defendant alongwith interest? OPP.

             vi)   Whether the plaintiff is entitled for damages w.e.f.
             01.07.2000 till the actual removal of the encroachment and
             restoration of the premised in its original condition
             alongwith interest. If so, at what rates? OPP

             vii)    Relief.

      4.     Issue nos. 1,2 & 3 were all decided against the plaintiff

and in favour of the defendant. Issues No. 4-6 were also

consequently decided against the plaintiff. The suit of the plaintiff

was dismissed.

      5.     Before the trial judge, one witness had been examined

on behalf of the plaintiff and five witnesses had been examined on

R.S.A. No.122/2008                                              Page 2 of 4
 behalf of the defendant. Their detailed versions were scrutinized

as also the documentary evidence proved in their testimonies.

Lease Deed executed between Mr. Anil Rathi, the brother of the

plaintiff and the defendant was proved as exhibit PW1/D1. Even

before this court, at the time of arguments, the learned counsel for

the appellant had conceded that he is not disputing this document.

The photographs of the suit property and the site plan had been

proved in the versions of DW1 and DW 5; the site plan is exhibit

DW 1/84 and the photographs as DW 1/67 to DW 1/74.                   The

contention of the defendant is that these documents substantiate

his argument that there was no encroachment in the suit property;

the property which had been leased out had not changed in

character. Trial judge had also noted that the said witnesses i.e.

DW-1 & DW-5 have not been cross-examined on the aforenoted

documents. The suit was accordingly dismissed.

      6.   These findings of the trial judge were endorsed by the

first appellate court in its judgment and decree dated 11.12.2009.

The first appellate court had also noted that the reliance by the

trial judge on the photographs DW1/67 to DW 1/74 as also the site

plan exhibit DW 1/84 had established that the defendant had not

carried out any material additions or alterations in the suit

property and this contention of the plaintiff has been negatived. It

was further held that the suit of the plaintiff is barred by limitation

under the provisions of Article 113 of the Limitation Act. The suit

had been filed on 04/07/2000 and as per the evidence on record,

the defendant had changed the furniture and fixtures sometime in

the year 1992; as such the suit filed in the year 2000 by the

plaintiff was also time barred.

R.S.A. No.122/2008                                           Page 3 of 4
 3.    This is a second appeal.         The appeal has not yet been

admitted. The substantial questions of law have been formulated

at page 10 of the memo of appeal. The inter alia reads as follows:

      i)     Whether in the facts and circumstances of the case the
             alleged lease deed stated to have been executed between
             the respondent and Shri. Anil Rathi has any binding effect of
             the appellant.

      ii)    Whether the plea of the respondent in regard to the area of
             the shop and the mezzainine floor could be accepted on the
             basis of the alleged site plan which was never proved, nor
             the respondent was able to prove, particularly when the
             respondent even failed to prove that the site plan was ever a
             part of the lease deed dated 25.07.1992 alleged to have
             been executed between Shri. Anil Rathi and the respondent?

      iii)   Whether the claim of the respondent can be accepted on the
             basis of the alleged lease deed which have been admittedly
             alleged to have been executed by Sh. Anil Rathi who was
             never the owner/landlord of the suit premises?

4.    These are all propositions of fact. The lease deed is an

admitted document. The contention of the appellant that the site

plan was not proved is not substantiated by his argument. He has

failed to show as to how the site plan does not stand proved. Trial

court as also the first appellate court had correctly held that the

site plan exhibit DW1/84 has been proved in the version of DW 1; in

fact no cross-examination had been conducted of this witness.


5.    There are two concurrent findings of facts by both the courts

below. No substantial question of law has arisen in this case. This

court is not a third fact finding court.           Unless and until a

substantial question of law arises, no interference is called for.

There is no merit in the appeal. The appeal is dismissed in limine.




                                             INDERMEET KAUR, J.

AUGUST 26, 2010 ss