Delhi High Court
Hari Mohan And Anr. vs Smt. Maya Devi And Anr. on 26 July, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA Nos.82/2010 & 84/2010
% July 26th, 2011
1. RSA No.82/2010
HARI MOHAN AND ANR. ...... Appellants
Through: Mr. S.K. Bhalla, Advocate.
VERSUS
SMT. MAYA DEVI AND ANR. ...... Respondents
Through: Mr. B.K. Verma, Advocate.
2. RSA No.84/2010
HARI MOHAN AND ANR. ...... Appellants
Through: Mr. S.K. Bhalla, Advocate.
VERSUS
SMT. MAYA DEVI AND ANR. ...... Respondents
Through: Mr. B.K. Verma, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
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
RSA Nos.82/2010 & 84/2010. Page 1 of 5
VALMIKI J. MEHTA, J (ORAL)
1. These two appeals arise from a common judgment of the
Appellate Court dated 19.12.2009 between the same parties raising
common questions of law and fact and have therefore been heard and
are being disposed of by this common judgment.
2. The challenge by means of these Regular Second Appeals is
to the impugned judgment dated 19.12.2009 by which the appeal of the
respondents herein was accepted and consequently the suit of the
plaintiffs/appellants which was decreed by the trial Court was dismissed.
3. The facts of the case are that two suits were filed, one by
Smt. Maya Devi (respondent No.1) for permanent injunction to restrain
the appellants from interfering with her possession and enjoyment of the
suit property comprising of 250 sq. yards situated at house No.G-24, Plot
No.9, Laxmi Nagar, Delhi. Another suit was also filed by the present
appellants seeking mandatory injunction against the respondents to hand
over the possession of the suit property. The suit of the present
appellants was decreed by the trial Court and the suit of the present
respondents was dismissed. In the appeal, however, by the impugned
judgment dated 19.12.2009, the suit of the appellants for mandatory
injunction came to be dismissed and the suit of the respondents came to
be decreed.
RSA Nos.82/2010 & 84/2010. Page 2 of 5
4. The case of Smt. Maya Devi/respondent No.1 was that she
had purchased the suit property from the appellant No.2 Smt. Koyal Devi,
who was the wife of the appellant No.1, in the year 1972 by payment of
total sale consideration of Rs.8,000/-. It was further the case of Smt.
Maya Devi/Respondent No.1 that after having purchased the property she
constructed on the property, got electricity and water connections
installed and paid all other charges as were necessary with respect to the
property. Since the intentions of the appellants became dishonest, the
subject suit was filed by Smt. Maya Devi on 12.1.1989 and subsequently
to which in April, 1990 the appellant filed the counter suit. The Appellate
Court has given the benefit of Section 60 of the Easement Act, 1882
(hereinafter referred to as 'the Act') to the respondents herein by holding
that once a licence is created in an immovable property and such licence
is coupled with interest and there is permanent construction on the
property such licence cannot be terminated. Trial Court invoked Section
60 of the Act inasmuch as there was no title document in favour of the
present respondent No.1/Smt. Maya Devi.
5. Learned counsel for the appellants sought to argue that
Section 60 of the Act has been wrongly suo moto invoked by the
Appellate Court since the respondent No.1 herself denied the applicability
of Section 60 of the Act. It has been argued that the Appellate Court has
RSA Nos.82/2010 & 84/2010. Page 3 of 5
erred in granting relief to the respondents and dismissing the suit of the
appellants.
6. A Regular Second Appeal has to be only entertained if there
arises a substantial question of law. Merely because two views are
possible and the Appellate Court has taken one possible view, cannot
mean that a substantial question of law arises. Appreciation of evidence
is within the jurisdiction of the original Court and the Appellate Court, and
which appreciation of evidence ought not to be lightly interfered because
for maintaining a second appeal there is required not only a question of
law but a substantial question of law.
In my opinion, the arguments as raised by the counsel for the
appellants are misconceived and no substantial question of law arises
inasmuch if really the appellant No.2/Smt. Koyal Devi, wife of appellant
No.1, was the owner of the property, then the appellants would not have
stood by and allowed the respondents to raise construction on the suit
property. It is established on record that the respondent No.1 herein
incurred the complete costs for construction on the plot, got electricity
and water connections in her name and also has paid all the charges to
the local authorities with respect to the subject property. Clearly
therefore Section 60 of the Act applies. The argument of the appellants
RSA Nos.82/2010 & 84/2010. Page 4 of 5
that the respondents herself denied applicability of Section 60, is without
merit inasmuch as there cannot be an estoppel against law. The
respondents are always entitled to argue that Section 60 of the Act
applies. In my opinion, the Appellate Court is also otherwise correct
because as per Section 115 of the Evidence Act, 1872, once a person
having a belief that he is the owner of a plot, constructs on a plot and the
real owner stands by then such real owner is estopped from claiming any
title in the plot inasmuch as by standing by he has given a representation
that the person who constructs on the plot had complete entitlement to
construct. Further, since the respondent No.1 has admittedly made
entire construction on the plot in question, she is definitely the owner of
the building which has been constructed on the plot though formally
there may not be title papers in the name of the respondents with
respect to the plot in question.
7. No substantial question of law therefore arises. Dismissed.
JULY 26, 2011 VALMIKI J. MEHTA, J.
Ne
