Shishwati vs Ram Gopal And Ors.
2010 Latest Caselaw 620 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+          RSA NO. 21/2010 & CM APPL. 2191-2192/2010

                                   Date of Decision: 4th February, 2010

       SHISHWATI                                       ..... Appellant
                                Through:    Ms. Kusum Lata Sharma,
                                            Advocate.

                       versus

       RAM GOPAL AND ORS                             ..... Respondents
                                Through:    None.

       %
       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?
     (3)         Whether the judgment should be reported
                 in the Digest ?

                           JUDGMENT

ARUNA SURESH, J. (Oral)

1. Appellant filed a suit for permanent and mandatory

injunction against the respondents for restraining them from raising

any construction, or to attempt to fence with barbed wire, or to create

any third party interest in the property bearing No. 12/109-E, Geeta

Colony, Delhi, claiming herself to be the owner of the same. She

also sought mandatory injunction for directing the respondents to

remove the door from the wall of premises No.12/109-C, Geeta

Colony, Delhi. The said suit was dismissed by the Trial Court vide

its judgment and decree dated 28th August, 2004.

2. Aggrieved by the said judgment and decree, appellant

filed regular appeal being RCA No.11/09 before the Additional

District Judge, Delhi. The said appeal also met the same fate and

was dismissed by the Appellate Court vide his judgment dated 26 th

October, 2009. Hence, this second appeal.

3. Learned counsel for the appellant has submitted that

the court erred in holding that appellant had failed to prove that she

was the owner of the property in suit, specially when documents

showing her ownership were duly marked on the record. She further

submitted that Trial Court also did not take into consideration the site

plan, filed by the appellant before the court. According to her, Trial

Court went wrong in appreciating the evidence of the parties

adduced on record even when respondent did not file any written

statement and thus respondents admitted the claim of the appellant as

made in the plaint. She has argued that in view of Section 58 of the

Evidence Act, non-filing of written statement in itself amounts to

admission and since the court failed to appreciate the factum of

respondents' not-filing the written statement, it erred in law by

ignoring the provision of Section 58 of the Evidence Act.

4. Section 58 of the Evidence Act speaks of facts

admitted need not be proved in evidence. However, proviso to this

Section empowers a court to require the facts admitted to be proved

otherwise than by such admissions. Since respondents contested the

suit but, did not file the written statement, it cannot be said that

respondent admitted the claim of appellant. Therefore, Trial Court

did not err in law when it ignored the provision of Section 58 of the

Evidence Act.

5. It is further submitted by counsel for the appellant that

though First Appellate Court did observe that question of title was

not in issue and appellant was only required to prove her possession

and cause of action, but went wrong in dismissing the appeal on the

basis of title itself specially when possession of the appellant in the

suit premises was an admitted fact.

6. Substantial questions of law, as suggested by the

appellant in the appeal, are as follows:-

"i) Whether the Plaintiff was required to prove her case when the Defendant refused to file the written statement which itself amounts to admission in view of Section 58 of the Evidence Act?

ii) Whether the Defendants/Respondents are

within their right to violate the privacy of the appellant by opening the door in front of her property as the right of privacy is guaranteed by Constitution of India under the Article 21 and 23?

iii) Whether the appellant is required to prove the existing structure in absence of any specific denial by the Respondents by not filing any written statement or site plan?"

7. Non-filing of written statement by the respondents only

tantamount to non-controverting the pleadings contained in the

plaint. However, the appellant was required to prove her case even if

there was no written statement on record. The Trial Court had

recorded the statement of respondent Ram Gopal under Section 10 of

the Code of Civil Procedure. Perusal of the same indicate that

nowhere respondent admitted possession of the appellant in the suit

premises. Rather, he has stated that suit property belonged to the

Government. Criminal litigation had also ensued between the parties

with complaints and counter-complaints against each other.

8. To show her possession in the suit property, appellant

was required to prove on record as to in what capacity she was in

possession of the suit property. The Trial Court noted in the

judgment that though appellant filed a copy of the General Power of

Attorney and Agreement to Sell, but failed to prove these two

documents as she had not thumb marked the agreement to sell and

other documents. She could not state the amount of consideration

paid by her at the time of purchase of the property. She could not

identify signature of Rakesh Kumar on General Power of Attorney.

It was under these circumstances that Trial Court held that appellant

had failed to prove her bona fide possession in the suit premises.

Trial Court also observed that appellant had failed to ascertain the

property in dispute. The court also observed that appellant claimed

herself to be the owner of 85 sq. yds. but in her statement on oath she

claimed the entire property measuring 60 X 12.5 sq. yds to be in her

possession. These findings on fact were affirmed by the First

Appellate Court in the impugned judgment.

9. In the second appeal, Court cannot re-assess the

evidence of the parties adduced on record. Section 100 CPC only

empowers the Second Appellate Court to consider if there was any

substantial question of law involved in the appeal. Findings on fact

by the courts below are binding on the parties. Therefore, by way of

this appeal, appellant cannot invoke jurisdiction of this Court to

interfere in the fact findings of the courts below specially when it is

not a case of perverse finding of facts.

10. Under these circumstances, none of the substantial

questions of law, as suggested, arise in this case. Hence, appeal is

dismissed.

CM Nos.2191/2010 (u/O 41 R 5 r/w S.151 CPC) & 2192/2010 (u/O 41 R 1 r/w S.151 CPC)

11. Since the appeal has been dismissed, both these

applications have become infructuous. Hence, the same are

dismissed accordingly.

ARUNA SURESH, J.

FEBRUARY 04, 2010 sb