Shri Hira Lal vs Shri Rakesh @ Raju & Ors.
2011 Latest Caselaw 2507 Del

R-291
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 10.05.2011

+                        R.S.A.No. 32/2008

SHRI HIRA LAL                             ...........Appellant
                  Through:           None.
             Versus
SHRI RAKESH @ RAJU & 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 appeal has impugned the judgment and decree dated

01.11.2007 which had endorsed the finding of the trial judge

dated 17.11.2005. Vide judgment and decree dated 17.11.2005

the suit filed by the plaintiff Hira Lal seeking ejectment from the

suit property i.e. the property bearing No.104, Near C.C.Colony,

Kalyan Vihar, Delhi as also recovery of damages had been

dismissed.

2. Plaintiff claims himself to be the owner of the suit premises.

In 1985 the brother of the plaintiff namely Gopi Chand who is the

father of the defendants approached the plaintiff to permit him to

use the suit property on licence basis at monthly licence fee of

Rs.500/-. Gopi Chand expired on 29.3.1996; his sons i.e. the

defendants are in possession of the suit property. In spite of

demand notice dated 29.4.2003 claiming arrears of user charges

and vacation of the suit property defendants had failed to vacate

the suit property. Suit was accordingly filed.

3. In the written statement, it was contended that the plaintiff

has not come to the court with clean hands. Plaintiff and the

father of the defendants had acquired the premises jointly after

partition from other brothers; plaintiff had agreed to leave all the

properties in the village in lieu of this aforenoted property; the

intention of the plaintiff had become bad; he had failed a suit for

permanent injunction which was later withdrawn; in that suit

plaintiff had not averred that the defendant was a lessee; his

contention was that the father of the defendants wanted to grab

the property of the plaintiff; he has set up contrary plea. Present

suit was even otherwise barred under the provisions of Order 2

Rule 2 of the Code of Civil Procedure (hereinafter referred to as

„the Code‟).

4. Defendant no.5 had filed separate written statement. It was

stated that the suit property is bhumidari land and the suit is

barred under Section 86A of the Delhi Land Reforms Act; plaintiff

has already received his share in partition of Rs.75,000/-.

5. From the pleadings of the parties, the following six issues

have been framed:

1.Whether the plaintiff is entitled to a decree of possession? OPD

2.Whether the suit has been valued properly for the purposes of court fee and pecuniary jurisdiction? OPD

3.Whether the defendants are the owner of the suit property? OPD

4.Whether the plaintiff is entitled to arrears of licence fee? IF yes, for what period and for what rate? OPP

5.Whether the plaintiff is entitled for pendentelite interest? If so, at what period and at what rate? OPP

6.Relief.

6. Oral and documentary evidence was led. Trial judge had

noted that none of the parties had title documents of the property;

however the defendants were admittedly in possession of the suit

property. The court had noted that the plaintiff was not clear

whether the defendants were tenants or lessee. Plaintiff had

failed to prove that the defendants are licencees; his claim was

rejected.

7. This finding was endorsed in first appeal.

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

05.10.2009 the following substantial question of law was

formulated:

"Whether the family settlement dated 5.1.1978 needed compulsory registration?"

9. None has appeared for the appellant in spite of the fact that

the counsel for the appellant Mr.B.P.Singh Parihar, Advocate and

counsel for respondent Mr.R.K.Dahiya, Advocate had been

informed telephonically. This was recorded by this Court on

06.5.2011. Matter has since been retained on Board. There are

two concurrent finding of fact against the appellant. Findings of

fact cannot be interfered with in a second appeal unless and until

there is a perversity. Defendants for the first time in this appeal

has set up a plea that the family settlement dated 27.1.1978

requires a registration. This was never a contention in the courts

below. The courts below had in fact noted that the family

settlement had in fact been acted upon.

10. The substantial question of law is accordingly answered

against the appellant and in favour of the respondent. There is no

merit in the appeal. It is dismissed on merits as also for non-

prosecution.

INDERMEET KAUR, J.

MAY 10, 2011/nandan