Ram Swaroop vs Sunheri Devi & Ors.
2010 Latest Caselaw 4348 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment : 15.09.2010

+                        R.S.A.40/1997

RAM SWAROOP                                    ...........Appellant
                         Through:    Mr.S.K.Chaudhary,
                                     Advocate.
                   Versus

SUNHERI DEVI & ORS.                       ..........Respondents
                 Through:            None.

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 21.4.1997 whereby the judgment and decree of the trial

judge dated 25.7.1995 had been endorsed. The trial judge vide

judgment and decree dated 25.7.1995 had decreed the suit of the

plaintiff/respondent Sunheri Devi for an amount of Rs.1440/-. The

plaintiff had filed a suit for possession of a part of the plot in

Khasra No.23/23/1/1 situated at Chhawla Bus Stand, Najafgarh,

Delhi. Plaintiff had constructed six shops in the year 1950-51.

Defendant was a tenant in respect of one shop at a monthly rental

of Rs.40/-. Plaintiff had earlier filed a suit for possession i.e. Suit

no.893/1973 which was decreed in her favour on 8.7.1973.

Plaintiff was held to be the owner of the land measuring 10 Biswas

in Khasra No.23/23/1/1. On 12.9.1973 plaintiff had demanded

arrears of rent of the disputed shops. Defendant had paid rent for

a part period and a balance of Rs.1440/- was still due and payable.

Present suit i.e. Suit No.451/1992 was filed. Trial judge framed six

issues. A decree in the sum of Rs.1440/- was passed in favour of

the plaintiff.

2. The first appellate court vide impugned judgment dated

21.4.1997 endorsed the finding of the trial judge.

3. This is a second appeal. On 20.9.2004 this court had

recorded that in a corresponding suit between the same parties i.e.

Suit no.647/2000 Ram Swaroop had been held to be the owner of

the premises in question whereas in Suit no.451/1992 Sunehri Devi

had been held to be the owner. An appeal had been filed against

the judgment in Suit no.647/2000. On 20.9.2004 this court had

adjourned this second appeal sine die with liberty to the parties to

have it revived after the decision of the first appellate court

wherein the judgment and decree dated 22.2.2003 passed in Suit

no.647/2000 had been impugned.

4. Matter has remained on board. None has appeared for the

respondent. Telephonic message has also been sent to the counsel

for the respondent i.e. Mr.Ram Kishan Saini, Advocate but he has

not bothered to appear either yesterday or today.

5. Learned counsel for the appellant has placed on record the

copy of the judgment dated 7.7.2007 passed by the first appellate

court in Suit no.647/2000. In the judgment of 7.7.2007 the first

appellate court had endorsed the finding of the trial judge in Suit

no.647/2000 holding that the suit property is owned by Ram

Swaroop. The contentions raised in Suit no.451/1992 had been

considered wherein it was noted that no relief of possession had

been claimed. It was held that the principle of resjudicata was

held not applicable as the matter in issue in the two suits i.e. Suit

no.451/1992 and Suit no.647/2000 were different. This finding in

the judgment dated 7.7.2007 passed by the first appellate court in

Suit No.647/2000 is borne out from the record. In the present suit

i.e. in Suit no.451/1992 five issues were framed but there was no

issue about the ownership of the plaintiff. Yet the court had

returned a finding that the plaintiff Sunehri Devi is the owner of

the suit property.

6. Counsel for the appellant has pointed out that in the

judgment dated 7.7.2007 which was also inter se between the same

parties a categorical finding has been returned that the

appellant/defendant Ram Swaroop is the owner of this suit

property. It is for this reason that the respondent has not been

appearing to contest the matter before this court.

7. Be that as it may, in view of the finding returned by the

Additional District Judge on 7.7.2007 in the proceedings emanating

from Suit no.647/2000, the counsel for the appellant states that

since he has been declared as a owner of the suit property by the

aforenoted judgment, he is no longer pressing this appeal. It is

further relevant to note that although this appeal had been

admitted and had been posted on the regular board yet till date no

substantial question of law is formulated. However, in view of this

statement made by the learned counsel for the appellant that he is

no longer pressing this appeal it is not necessary for this court to

go into the matter any further.

8. Appeal is accordingly dismissed as withdrawn.

INDERMEET KAUR, J.

SEPTEMBER 15, 2010 rb