Shri Kedar Nath & Anr. vs Vijay Kumar Kapani
2010 Latest Caselaw 3337 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment : 19.07.2010

+            R.S.A. No.67/2009 & CM No.7544/2009

1. SHRI KEDAR NATH
2. SMT.CHITA                             ...........Appellants
               Through:        Mr.D.K.Aggarwal Sr. Advocate with
                               Mr.Suryakant Singh, Advocate

                   Versus

VIJAY KUMAR KAPANI                       ..........Respondent

              Through:         Mr.Dhananjai Rana, Advocate

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. The question of law formulated in the memorandum of

appeal reads on internal page 17. The contention of the learned

counsel for the appellant is that the memorandum of understating

dated 1.7.1985 entered between the plaintiff and the defendant

was an understanding between the parties that the property will

be passed on to the defendant after five years if the money paid

by the defendant to the plaintiff is not refunded back by him;

further the finding of the trial court that this document required

registration has raised substantial questions of law. The evidence

adduced before the trial court has been ignored; the trial court

could not have concluded that the defendant had paid only small

amount of Rs.3,000/- in the purchase of the disputed property; the

unimpeachable evidence before the Courts below that the children

of defendant were studying in Ashok Vihar evidencing the

residency of the defendant in the suit premises since 1975 was

again mis-appreciated; in these circumstances the Courts below in

decreeing the suit of the plaintiff on these scores has committed a

perversity which is liable to be set aside.

2. Before adverting to an attempt to answer these queries

raised by the learned counsel for the appellant, the factual matrix

of the case would necessarily have to be gone into.

3. The plaintiff Vijay Kumar Kapani had filed a suit for recovery

of possession of house no.B-13-B, Pocket-B, Ashok Vihar, Phase-II,

Delhi as also damages of Rs.7500/-. Defendant no.1 was the

brother of the plaintiff and the defendant no.2 was his wife.

Parties were having amicable relations. Case of the plaintiff is

that earlier his brother was living in house no. D-186, Lajpat

Nagar, New Delhi which he had to vacate on 13.1.1987; in these

circumstances, the plaintiff had permitted the defendant to live in

the suit property till the time he could make alternate

arrangement; defendants had assured him that they would vacate

the suit property on or before 26.3.1988; in spite of requests

defendants did not vacate the suit property.

4. In the written statement it was stated that the defendant

no.1 had paid the entire proceeds of the suit property from his

own hard earned money i.e. a sum of Rs.23000/- for the purchase

of this DDA flat for which plaintiff's contribution was only

Rs.3000/-; further the plaintiff had given an undertaking to the

defendant no.1 that if the plaintiff is unable to return this amount

to the defendant, the defendant would become the owner of the

suit property.

5. On the pleadings of the parties, after the issues were

framed, the trial court decreed the suit of the plaintiff in his

favour. Testimony of the plaintiff examined as PW-1 was

appreciated. The allotment and possession letter of the suit

property has been proved as Ex.PW-1/2 and Ex.PW-1/3, his

passbook entries have been proved as Ex.PW-1/7. PW-1 in his

cross-examination has categorically denied the suggestion that the

defendant was permitted to live in the suit property till any

payment has been returned by the plaintiff. Pw-3 and PW-4

known to both the parties had also supported the stand of the

plaintiff. Another brother of the parties was examined as PW-5;

yet another brother was examined as PW-6. In all eight witnesses

were examined on behalf of the plaintiff. In defence five witnesses

were examined. The court had held that the plea of adverse

possession as set up by the defendants has not been proved. Title

of the suit property was admittedly in the name of the plaintiff and

it was also not the defence of the defendant that he was the owner

of the suit property. Suit of the plaintiff was decreed by the trial

court.

6. In appeal, the Appellate Court had endorsed the findings of

the trial judge. It had held that the tile of the suit property was

admittedly with the plaintiff; the allotment and possession letter

had proved that the flat had been allotted and thereafter physical

possession of the same had been handed over by the DDA to the

plaintiff who was also the assesee for the purposes of house tax.

The oral and documentary evidence of the plaintiff had been

appreciated; Appellate Court had concluded that the plaintiff had

deposited a sum of Rs.19,612/- and another sum of Rs.8,000/- for

the purchase of this property; the contention of the defendant that

he had paid a major part of the price of the suit flat had been

rejected. Versions of DW-4 and DW-5 i.e the defendant and his

wife had been examined. Appellate Court had further held that

the evidence adduced before the court had established that the

defendant also knew that the disputed property could be

transferred in his name only by way of a registered document;

testimony of DW-5 in this context is relevant and reads as under:

"The plaintiff had agreed to transfer the suit property by a registered document in my favour."

It was held that this admission of DW-5 in his version on

oath clearly evidenced that the defendant himself was aware of

the fact that the suit property could be transferred only by way of

a registered document. The Appellate Court had further endorsed

the view of the trial Court that the alleged memorandum of

understanding/settlement had not been proved by the defendant

in accordance with law; perusal of the same showing that it is a

document which is type written in hindi and purported to have

been signed by the plaintiff Vijay Kumar Kapani, this document

had been given mark B. It had not been proved as per the rules of

evidence. The Court had further held that this document is also

not registered and even on this count it could not be looked into.

7. The contention of the learned counsel for the appellant is

that this finding of the first appellate court is contrary to law as

the memorandum of understanding entered between the parties

does not require any registration and on this count a substantial

question of law has arisen which requires adjudication. Learned

counsel for the appellant has placed reliance upon AIR 1976 SC

2229 Damadilal & Ors. Vs. Parashram & Ors. to support his

submission that even on findings of facts the second Appellate

Court can interfere. This judgment is dated 7.5.1976. Section

100 of the Code was amended w.e.f. 1.2.1977; the effect of the

amendment being to restrict the scope of a second appeal; the

right of second appeal being restricted only where a question of

law involved is a substantial question of law.

8. Submissions have been countered by the learned counsel

for the respondent. It is submitted that this Court is sitting in

second appeal; the strict parameters as contained in Section 100

of the CPC have to be adhered to; unless a substantial question of

laws has arisen no interference is called for in a second appeal.

For this proposition reliance has been placed upon AIR 2006 SC

2172 Mst.Sugani Vs.Rameshwar Das & Anr.. Reliance has also

been placed upon a judgment AIR 1986 All. 19 Ram Briksha Singh

& Ors. Vs. Rudra Narain Singh & Anr. to support his submission

that the question as to the execution of a document is a pure

question of fact which cannot be interfered with in second appeal.

9. This Court is of the view that no substantial question of law

has arisen. First and foremost, the Courts below had held that

this document had not been proved as per rules of evidence and

rightly so the maker of the document had not come into witness

box to prove it and neither was there any testimony to the effect

that the person testifying it could identify the signatures of the

person who had signed it. The first Appellate Court had also

examined the document itself and drawn the conclusion that the

face of the instrument shows that it is forged and fabricated as the

manner in which it has been typed being illegible, writing in blue

ink in the document showing that this piece of paper is a doubtful

document. This has been recorded in para 13 of the judgment of

the appellate court clearly showing that the court itself had

examined the document. Suspicion had centered around this

document; this was another reason for the rejection of the said

document by the two Courts below. The first Appellate Court had

further re-endorsed its finding by holding that this document is not

registered and for that reason also it cannot be looked into. Even

presuming that this submission raises a disputable proposition, yet

this was not the only reason for the rejection of the so called

memorandum of understanding mark B. In these circumstances

by no stretch of imagination can it be said that any question of law

much less any substantial question of law has arisen. Finding of

the two Courts below was on the basis of fact finding evidence

available on record which this Court sitting in second appeal

cannot re-appreciate. The question of law as formulated in the

memo of appeal seeks direction from this Court to go into all

findings of fact i.e. about the school record of the children, about

payments if any made by the defendant all of which this Court

sitting as a second Appellate Court cannot go into. The fetters

imposed upon this Court while hearing a second appeal does not

permit this Court to make a fact finding or a roving inquiry. No

substantial question of law has arisen. Appeal and the CM

No.7544/2009 are dismissed.

CM No.7545/2009( u/O 20 R.6 CPC)

This application has become infructuous. It is dismissed.

Crl.M.A.No.319/2010 ( u/S 340 Cr. P.C.)

Counsel for the respondent states that he would not be

pressing this application. This application is dismissed as

withdrawn.

INDERMEET KAUR, J.

JULY 19, 2010 nandan