Shashi Saini vs Rajinder Singh & Ors.
2011 Latest Caselaw 2360 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of judgment: 03.5.2011

+R.S.A.No. 275/2007 & CM Nos.14949/2007 & 14950/2007

SHASHI SAINI                                 ...........Appellant
                       Through:    Mr.Sandeep Sethi, Sr.Advocate
                                   with Mr.Rajesh Gupta and
                                   Mr.Harpreet Singh, Advocates.
                  Versus

RAJINDER SINGH & 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)

CM No. 14950/2007 (exemption)

Allowed subject to just exceptions.

R.S.A.No. 275/2007 & CM Nos.14949/2007

1. This appeal has impugned the judgment and decree dated

19.07.2007 which had endorsed the finding of the trial judge

dated 31.03.2005 whereby the suit filed by the plaintiff Rajinder

Singh seeking permanent injunction restraining defendants from

interfering in plot measuring 450 sw. yards falling in khasra no.

818/1, West Vinod Nagar, D-Block, Delhi-92 (hereinafter referred

to as „suit property‟) had been dismissed.

2. The case of the plaintiff is that he is the recorded owner and

in possession of the suit property. Defendants tried to take

forcible possession of the suit property on 17.08.91; they could

not succeed; threats continued. Suit was accordingly filed.

3. Defendant no. 1 was proceeded ex-parte. Defendant No.2

had contested the suit. It was stated that he is the owner of the

property measuring about 385 sq. yards in the shape of 4 plots

adjacent to each other and suit land falls in khasra no. 801, West

Vinod Nagar, Mandawli, Fazalpur, Delhi and not in khasra no.

818/1 as been mentioned in the plaint. Defendant no. 2 had

purchased this property from Sh. Kanti Pd. And Sh. Raghubar vide

documents dated 09.08.1984, 28.07.1984 and 25.08.1984; the

correctness of the site plan was also disputed. Contention of

defendant no. 2 was that he was in the actual physical possession

of the suit property.

4. On the pleadings of the parties, the following issues were

framed:-

"1. Whether the disputed plot falls in khasra no. 818/1, West Vinod Nagar, Mandawali, Fazalpur, Delhi? If so, to what effect? OPP

2. Whether the plaintiffs are entitled to the relief of permanent injunction? OPP

3. Relief."

5. Oral and documentary evidence was led.

6. Suit of the plaintiff was decreed."

7. This was affirmed in first appeal. The first appellate court

was of the view that the defendant had failed to prove that the

khasra number of the property in question is 808 and not 818/1.

The appeal was dismissed.

8. This is a second appeal. It had been admitted and on

02.09.2008, the following substantial question of law was

formulated:-

"Whether the suit land to which the respondents laid claim had been acquired vide Award No. 49-C/70-71 dated June 26,1986 and Award No. 28/75-76 dated April 17, 1996?"

9. On behalf of the appellant, it has been urged that the award

no.70-71 dated 26.6.1986 clearly shows that 4 bighas out of

Khasra No.818/2 had been acquired; award no. 75-76 dated

17.4.1996 shows that balance land in Khasra No.818/1 i.e. 5 bighs

and 16 biswas stood acquired. This had not been considered by

the two courts below. If the land had been acquired and the

plaintiff had already received compensation in lieu thereof the

question of the plaintiff having been granted a decree of

injunction in his favour did not arise. The impugned judgment is a

perversity.

10. None has appeared for the respondent.

11. Admittedly the documents on which the plaintiff is placing

reliance i.e Award No.70-71 dated 26.6.1986 and Award No.75-76

dated 17.4.1996 had not seen the light of the day in the courts

below. They cannot be looked into by a second appeal court.

There is also no application under any provision of law seeking

permission of this Court to place these documents on record. The

contention of the learned counsel for the appellant is that on on

02.9.2008 the appeal had been admitted the substantial question

of law qua these two documents i.e. the Award No.70-71 dated

26.6.1986 and Award No.75-76 dated 17.4.1996 had been framed;

it is implicit that cognizance of the said documents had been

taken. This submission of the learned counsel for the appellant is

to be noted only to be rejected. Record shows that the substantial

question of law was formulated on the aforenoted two Awards.

However, it is also an admitted fact that that the said Awards are

not a part of the court record. This order was passed on

02.9.2008. The RSA is of the year 2007. The appellant has not

filed any application till date seeking permission of this Court to

place these documents on record. Order 41 Rule 27 of the Code is

the relevant provision under which additional evidence may be

permitted but such a prayer can only be granted if the strict

parameters contained therein are fulfilled. A party who is not able

to adduce evidence for any reason in the court below must satisfy

the appellate court that even after the exercise of due diligence he

could not have produced the said documents before the concerned

courts. This court cannot advert to this oral argument in the

absence of such a plea; what was the reason which had prevented

the appellant from filing these documents in the courts below; has

been left totally to the Courts imagination. These documents

cannot be read.

12. Learned counsel for the appellant has pointed out that in

para 3 of the written statement the defendant had made a

categorical statement that khasra no.818 has since been acquired

and compensation has since been paid to the plaintiffs. This had

been admitted by the plaintiff. This submission of the counsel for

the appellant is nowhere borne out from the record. Para 3 of the

replication of the plaintiff has been perused. It is stated that 6

bigha in khasra no.818 was proposed to be acquired; 5 bighas

and 16 biswas was in abadi which could not be taken; plaintiff has

taken compensation for 4 biswas of land. This submission does

not in any manner amount to an admission as has been urged by

the learned counsel for the appellant.

13. It has been further pointed out that by learned counsel for

the appellant that after the acquisition of this land possession

thereof had been taken. Two local commissioners had been

appointed under the orders of the court i.e. order dated 21.8.1991

and 18.11.1992. The first local commissioner was examined as

PW-3; he had visited the site; he had verified the possession of the

plaintiff on the spot. The second local commissioner Mr.Ashwni

Kumar Mehta had been examined as PW-1; he had also deposed

that the plaintiff was found present at the spot and in possession

of the suit land on the date of his inspection; this was in the year

1992. This submission of the learned counsel for the appellant

has little force.

14. On no count is interference is called for in the findings of

fact arrived at by the two courts below. The court had

categorically held that the defence of the defendant that the suit

land is in Khasra No. 801 has not been established; he had failed

to lead any evidence on this score. Defence of the defendant had

not been substantiated. On the other hand, plaintiff had been able

to establish that the suit land is located in khasra No.818; plaintiff

was apprehending dispossession from the defendant. Decree of

permanent injunction had rightly been granted in favour of the

plaintiff.

15. The substantial question of law as already aforenoted is qua

the documents which have not been proved and do not form part

of the record. They cannot be looked into. The substantial

question of law is accordingly answered against the appellant and

in favour of the respondent. There is no merit in the appeal. The

appeal as also the pending application is dismissed.

INDERMEET KAUR, J.

MAY 03, 2011 SS/nandan