Ram Sarup @ Nathan Ram vs Kokila Devi & Ors.
2013 Latest Caselaw 1115 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                  RSA No.189 of 2002 & CM No.3503/2010

                                        Decided on : 6th March, 2013


RAM SARUP @ NATHAN RAM                     ..... Appellant
             Through: Mr.Yogendra Gautam, Adv. for the LRs
                      of the appellant.


                      Versus


KOKILA DEVI & ORS.                            ..... Respondents
              Through:


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

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by Ram Sarup @ Nathan Ram

(since deceased) against Kokila Devi (since deceased), both of

them now represented by their legal heirs.

2. I have heard the learned counsel for the appellant on the substantial

question of law. The learned counsel has stated that the substantial

questions of law arising from the present regular second appeal,

reads as under:-

"(i) Whether the court below can dismiss the suit for possession specially when it is proved by the sale deed and Municipal records that the plaintiff is the owner?

(ii) Whether the municipal numbers of the property in dispute when proved by the officials of the MCD can be disbelieved by the Courts below?

(iii) Whether despite the admission of the defendant witness Sh.Manphool that the father of the plaintiff allowed the father in law of defendants to reside in the premises in dispute free of any charge, the court below can dismiss the suit of the plaintiff?

(iv) Whether the courts below can disbelieve the plaintiff specially when the defendants have not filed any documents regarding the ownership of the property?

(v) Whether the courts below without any documents can held that the property No.9347 and 9348 are different and are not one property?

3. I have carefully considered the submissions made by the learned

counsel and gone through the record.

4. This is a regular second appeal which is pending for the last more

than ten years without formulating any substantial question of law.

The substantial questions of law which are formulated in the appeal

and which are allegedly arising in the present regular second appeal

are mentioned hereinabove. Before deciding whether these

questions are prima facie, arising and if arising, whether they are

the substantial questions of law, it would be pertinent here to give

the brief background of the case.

5. The appellant/Ram Sarup had filed a suit for possession and

recovery of damages for use and occupation of the suit property

against Kokila Devi (since deceased). The case which was set up

by the plaintiff/appellant herein was that his father Mool Chand

was the owner of the property bearing no.280, situated at Abadi

Kekkar, Pul Mithai, Subzi Mandi, Delhi. It was alleged that the

aforesaid land was purchased by Sh.Mool Chand from one Baldev

Raj by virtue of a sale deed dated 18.4.1911. After purchase of the

said plot of land, Moolchand is alleged to have built a property on

the said plot of land which was given the municipal numbers

10501 to 10505. Out of the said property, one half was sold by

him during his life time to one Devi, wife of Hannu Mal in 1942.

This portion of the property which was purportedly sold by

Moolchand was given the municipal number 9344-9346. While as,

the other half of the portion was given the Municipal number 9347-

9348. The later portion of the property was allegedly used by

Moolchand and his other family members. It is alleged that during

the life time of Moolchand, the defendant/Kokila Devi (since

deceased) was allowed to stay on the ground floor as a licensee

without charging any amount from her. Moolchand was survived

by two sons namely Ram Sarup and Manohar Lal. The brother of

the plaintiff/appellant had allegedly relinquished all his rights, title

and interest in favour of the plaintiff/appellant. It was stated in the

plaint that on 9th August, 1978, Ram Sarup terminated the license

of Kokila Devi and asked her to vacate the suit premises. Since she

had not done the same, a suit for possession and recovery of

damages was filed by the plaintiff/appellant against her.

6. Kokila Devi contested the suit and denied the occupation of the suit

property as a mere licensee and claimed to be the owner of the said

property.

7. On the pleadings of the parties, the following issues were framed:-

(i) Whether the suit is not stamped properly? OPD

(ii) Whether the suit is bad for non joinder of necessary parties? OPD

(iii) Whether the plaintiff is the owner of property No.9347-9348, Gali Dorwali, Tokriwalan, Pul Mithai, Delhi? OPD

(iv) Whether the defendant is a licensee under the plaintiff? OPP

(v) Whether the plaintiff is entitled to mesne profits if so, to what amount? OPP

(vi) Relief.

8. Issue nos.1 and 2 were not pressed. So far as issue no.3 is

concerned, that was decided against Ram Sarup by the trial court

holding that he has not been able to prove himself to be the sole

owner of the aforesaid property and therefore, was not entitled to

the decree of possession and recovery of damages against the

defendant/respondent.

9. Feeling aggrieved, the appellant /Ram Sarup preferred first appeal

bearing RCA no.4/1995 against the judgment and decree of the

trial court, titled Sh.Ram Sarup @ Nathan Ram Vs. Smt. Kokila

Devi. This appeal was also dismissed by the appellate court vide

judgment/decree dated 24.8.2002 holding that Ram Sarup was not

able to prove his ownership qua the suit property bearing no.9347-

9348.

10. Still not feeling satisfied, the present regular second appeal has

been filed by the appellant in the year 2002 and it has been pending

since then at the admission stage itself without any sincere effort

being made by the appellant to address the Court on the substantial

question of law.

11. The questions which have been formulated by the appellant and

which have been reproduced in the background itself, are

essentially questions of fact and not questions of law.

12. The substantial questions of law which have been formulated are to

the effect that "whether the suit could have been dismissed,

whether the municipal numbers were proved, whether the

defendants were permitted to live in the suit property, whether the

trial court could believe or disbelieve the testimony of the

witnesses." All these questions are essentially questions of fact

which requires appreciation of evidence and not questions of law.

13. I therefore, feel that the present regular second appeal does not

involve any substantial question of law and accordingly, the same

is dismissed.

V.K. SHALI, J.

MARCH 06, 2013 RN