Om Prakash & Ors. vs Gian Chand & Ors.
2010 Latest Caselaw 5488 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Judgment: 02.12.2010

+             RSA No.27/2004 & CM No.1301/2004 (for stay)


        OM PRAKASH & ORS.                         ...........Appellants
                 Through:       Mr.Rajat Aneja, Advocate.
                 Versus

        GIAN CHAND & ORS.                        ..........Respondents
                 Through:       Mr. Amit Vohra, Advocate for
                                respondents no.1,2 &3.

        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 appeal has impugned the judgment and decree dated

01.9.2003 which has endorsed the finding of the trial judge dated

24.1.1994 whereby the suit of the plaintiff seeking mandatory

injunction had been dismissed.

2. This is a second appeal. On behalf of the appellant, it has been

pointed that findings in the impugned judgment are perverse; the

report of the hand writing expert DW-1 has not been considered in its

correct perspective; the plaintiff no.4 Mohd. Javed had all along

denied that he had ever written the disputed letter dated 2.4.1984. It

is submitted that the only way of access of the plaintiff to his suit

property was through a staircase of which he has now been denied

access by defendant. All these submissions have raised a substantial

question of law.

3. Arguments have been countered.

4. Perusal of the plaint show that this was a suit for mandatory

injunction wherein it had been averred by the plaintiff that he is a

tenant in the first floor of house No.977, Pam Mandi, Sadar Bazar,

Delhi. The defendants recently with malafide intention had tried to

close the entry of the plaintiff by constructing a four inch thick wall in

the main entrance gate of the plaintiff thereby denying him access

through main entry. Learned counsel for the respondent has pointed

out that in the entire plaint there is not a whisper of a staircase which

is now the bone of contention before this Court and finds mention in

the substantial questions of law which have been formulated by the

appellant in the body of the appeal. This submission of the learned

counsel for the respondent is correct.

5. Be that at it may, both the fact finding Courts below had delved

with the report of the hand writing expert DW-1 and had concluded

that the disputed letter dated 02.4.1984 had been written by the

plaintiff no.4 Mohd.Javed to the respondents. In terms of the said

letter, the plaintiffs had sought permission to break the wall of the

defendants and to use the staircase thereby establishing that the

plaintiffs were earlier not using any such staircase and there was a

wall in the disputed portion.

6. This Court is not a third fact finding Court; only if a substantial

question of law arises is this Court vested with jurisdiction. No such

substantial question of law having arisen, there is no merit in the

appeal. Appeal as also the application is dismissed in limine.

INDERMEET KAUR, J.

DECEMBER 02, 2010 nandan