Kedar Nath Kohli vs Sardul Singh & Anr
2013 Latest Caselaw 602 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    RSA 133/2012 & C.M. No.13466/2012 (for delay)

                                      Date of Decision: 7th February, 2013

        KEDAR NATH KOHLI                    .....          Appellant
                Through: Appellant in person.


                             versus

        SARDUL SINGH & ANR                  ..... Respondents
                 Through: Mr. R.C. Tiwari, Advocate for R-1 & 2
                          with respondent No.2 in person.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal under Section 100 CPC against the

judgment and decree dated 7.12.2011 passed by the learned Additional

District Judge dismissing the appeal of the appellant.

2. I have heard the appellant, who is appearing in person. Though, he

has been heard for almost 10-15 minutes, he is making submissions

which have absolutely no relevance for deciding the present regular

second appeal. As a matter of fact, he is giving the history as to how the

case has travelled in the courts below and his grievances with regard to

the same.

3. This is the normal difficulty which the court faces when the parties

appear in person irrespective of their being literate or illiterate. Be that as

it may, I have gone through the record. There is an application for

condonation of 120 days' delay in re-filing the appeal. The condonation

of delay of 120 days has been contested by the learned counsel for the

respondents. I have gone through the averments made in the application.

As the appellant has stated that the delay was not deliberate and

intentional and it was occasioned on account of his old age, I am inclined

to allow the application (C.M. No.13466/2012) and condone the delay as

it constitutes a 'sufficient cause'. This delay has been condoned by

taking a liberal view of Section 5 of the Limitation Act.

4. So far as the regular second appeal is concerned, there is absolutely

no merit in the appeal as it does not involve any substantial question of

law. In order to appreciate that, it would be pertinent here to mention the

brief background of the case. The father of the appellant namely Late

Sh.Mehar Chand Kohli filed a suit for recovery and possession of plot

No.27 bearing municipal No.1443, Wazir Nagar, Gali No.7, Kotla

Mubarakpur, New Delhi against the respondent, claiming himself to be

the owner and the respondents to be trespasser.

5. The trial court, after inviting the written statement, framed the

issues, permitting the parties to adduce evidence and decided the issue

Nos.1 and 2, which were as under:-

"1. Whether the plaintiff is absolute owner of plot no.27, now bearing municipal no.1443, Wazir Nagar, Gali No.7, Kotla Mubarakpur, New Delhi? OPP

2. Whether the defendants have illegally tress-passed on land in question? If so, its effect? OPP"

6. It was specifically held by the trial court that the appellant has not

been able to prove that the respondents/defendants have trespassed into

property bearing No.1443, Wazir Nagar, Kotla Mubarakpur. As a matter

of fact, it was held that there is another property bearing No.1443A,

Wazir Nagar, Kotla Mubarakpur measuring 295 square yards which is in

occupation of the respondents. The trial court returned a finding that

there are two properties bearing similar numbers but they are 1443 and

1443A. The appellant is the owner of the former while as the respondents

are in occupation of 1443A. Accordingly, the suit was dismissed.

7. The appellant feeling aggrieved by the dismissal of the suit

preferred the first appeal before the court of Additional District Judge.

The learned ADJ upheld the finding of fact returned by the trial court.

Thus, there was a concurrent finding to the effect that there are two

properties, one bearing No.1443 and the other 1443-A, Kotla Mubarakpur

and it has not been established by the appellant that the defendants have

trespassed into property No.1443 belonging to the appellant. Since there

is a concurrent finding of fact with a reasoned and detailed order by the

two courts below, this court, in exercise of its power of second appeal

under Section 100 of the CPC, cannot upset that finding of fact. No other

substantial question of law is arising from the appeal and accordingly, the

appeal, in my view, does not have any merit and the same is dismissed.

V.K. SHALI, J.

FEBRUARY 07, 2013 'AA'