Trilok Chand Tyagi & Ors. vs M.C.D.
2013 Latest Caselaw 732 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                             R.S.A. NO.206 OF 2008

                                        Decided on : 14th February, 2013

TRILOK CHAND TYAGI & ORS.              ...... Appellants
             Through: Mr.B.P.Dhalla, Adv.

                         Versus

M.C.D.                                ...... Respondents
                       Through:   Ms.Maninder Acharya, Adv.

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

V.K. SHALI, J. (ORAL)

1. I have heard the learned counsel for the appellants.

2. The learned counsel for the appellants has drawn the attention of

the Court to page 2 of the appeal where the substantial questions of

law have been formulated. These substantial questions of law

reads as under:-

(i) Whether the learned court below rightly dismissed the application filed by the appellant seeking adjournment sine die in view of the orders passed by this Hon'ble Court dated 29.11.2004 in CM(M) No.604/2004?

(ii) Whether impugned order passed by learned court below is contrary to law and the facts of the present case?

(iii) Whether the learned court below ought not to have dismissed the application in view of the orders passed by this Hon'ble Court in the CM(Main) Petition aforesaid?

(iv) Whether the learned court below ought to have considered that the rights of the appellant no.1 were further strengthened when he purchased the suit land from Shri Prabhut Nath on 25.2.1987 against valuable sale consideration?

(v) Whether the learned court below rightly held that Shri Prabhut Nath was a necessary party in the face of the documents produced on records?

(vi) Whether the learned court below rightly considered that the respondent corporation has any concern with the suit land?

3. I am of the considered opinion that the substantial questions law

which have been mentioned above are essentially questions of fact

and not substantial questions of law. In order to appreciate the

controversy between the parties, it would be pertinent here to give

the brief facts of the case.

4. The appellant had filed a suit for permanent injunction claiming

himself to be the owner and in occupation of suit land measuring

200 sq. yds. of plot no.179-A/1 (Khasra No.729/2005) Village

Jhilmil, Tahirpur, Dilshad Garden, Shahdara, Delhi. It was the

case of the appellant that he had forcibly occupied the aforesaid

parcel of land in 1975 and was running a milk dairy on the said

plot of land. The appellant claimed that by virtue of the adverse

possession, he had become the owner qua the plot in question

which was purportedly owned by the respondent /MCD.

Alternative plea was taken that the appellant had purchased the

aforesaid plot of land from Sh.Rajaram Sharma, attorney of

original owner Sh.Prabhut Nath. It was however, alleged that as

the respondent had threatened to dispossess him from the said plot

of land on 31.3.1987, he was constrained to file the aforesaid suit.

The respondent appeared before the trial court and contested the

suit. It was claimed by the respondent /MCD that they are the

owners of the property and they also denied the title of the

appellant on the basis of adverse possession. On the pleadings of

the parties, the following four issues were framed in the year

7.8.1987, which reads as under:-

(i) Whether the plaintiff has become owner by adverse possession alleged in the plaint? OPD

(ii) Whether the plaintiff is in possession under agreement to sell and power of attorney dated 27.2.1987? If so, to what effect? OPP

(iii) Whether the plaintiff has any cause of action to file the suit? OPP

(iv) Relief.

5. Subsequently, on 16.1.90, two additional issues were framed,

which are as under:-

"(i) What is the effect of GPA dated 27.2.1987 executed by Raja Ram in favour of the plaintiff? OPP

(ii) Whether the MCD has any concern over the suit land/property? OPD

6. After permitting the parties to adduce their evidence, the trial court

dismissed the suit of the appellant by observing that the appellant

neither established his ownership regarding the suit property by

adverse possession nor was he able to prove that he is the owner of

the property by having purchased it from the original owner and

therefore, the suit of the appellant was dismissed.

7. Feeling aggrieved, the appellant preferred the appeal which was

heard and dismissed by the appellate Court on 18.8.08.

8. I have been informed by the learned counsel for the respondent that

during the pendency of the appeal, the appellant had purportedly

filed an application u/O 41 Rule 27 CPC seeking permission to

adduce additional evidence. This application was rejected by the

learned ADJ after hearing the counsel for the appellant. Against

the said order of dismissal for adducing additional evidence, the

appellant is stated to have filed CM(M) no.604/2004 which came

to be admitted, however, there was no stay against the further

proceedings conducted by the appellate Court in the appeal.

Consequently, the appellate Court decided the appeal on merits.

The appellate Court after hearing arguments of the learned counsel

for the parties, dismissed the appeal by upholding the judgment and

decree of the trial court.

9. Still feeling dissatisfied, the appellant has filed the present second

appeal. It is in the context of this second appeal, the learned

counsel has made submissions that the substantial questions of law

are arising in the present appeal and therefore, it may be admitted

and set down for hearing on regular basis. With regard to the

questions which have been formulated by the appellant, I have

expressed the view hereinabove that all these questions are

essentially questions of fact and not questions of law.

10. Another substantial question of law which the learned counsel for

the appellant raises in the present appeal is as to-whether the

appellate Court could have decided the appeal of the appellant on

merits without awaiting for the decision in the aforesaid CM(M)

which was filed by him against the rejection of his application

under Order 41 Rule 27 CPC?

11. I have carefully considered the submissions of the learned counsel.

12. I do not feel that any substantial question of law is arising from the

appeal. The appellant can file number of miscellaneous

applications if he feels aggrieved, however, unless and until there is

a stay against the proceedings, the forum where the appeal is

pending is well within its right to decide the appeal on merits.

13. I therefore, consider that this cannot be treated as a question of

law much less substantial question of law. I do not find any merit

in the submissions of the learned counsel for the appellant nor any

substantial question of law is arising in the present appeal,

accordingly, the present appeal is dismissed.

V.K. SHALI, J

FEBRUARY 14, 2013 RN