Nand Lal vs Rita Gauri & Ors.
2013 Latest Caselaw 5273 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                   RSA 126/2012 & CM No.12973/2012

                                       Date of Decision : 18.11.2013

NAND LAL                                          ..... Appellant

                          Through:     Mr.Kumar Mukesh, Advocate.

                          versus

RITA GAURI & ORS.                                  ..... Respondent
                          Through:


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

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by the appellant against the

judgment and decree dated 24.04.2012 passed by the learned ADJ in

RCA No.30/2005.

2. I have heard the learned counsel for the appellant with regard to

formulation of question of law. However, the formulation which has

been advanced by the learned counsel for the appellant with regard to the

submission as to whether agreement to sell in question creates any right,

title or interest in the suit property or the occupation of the premises by

the appellant as a tenant which was subsequently perfected by an

agreement to sell do not raise any question of law much less a substantial

question of law.

3. I have also perused both the judgment of the trial court as well as

of the first appellate court. I am also not satisfied that the case involves

any substantial question of law. However, in order to appreciate the

controversy between the parties it would be necessary to give a brief

background of the case.

4. The present appellant filed a suit for cancellation of sale deed dated

21.07.1971 purported to have been executed by R-2 in favour of R-1.

Incidentally, it may be pertinent to mention here that R-2/Smt.Sumitra

Devi is purported to have purchased the suit property from one Ishwar

Dass vide sale deed dated 26.06.1970 and registered on 27.06.1970. The

title of Ishwar Das was further traced to one Sh.Ram Gopal. Although

the case of the present appellant was that Ram Gopal never transacted the

property to Sh.Ishwar Dass. It was also the case of the appellant that he

was held in occupation of the suit property bearing no.F-61/A, Verinder

Nagar, New Delhi. Right from 1969 and an agreement to sell dated

05.01.1979 was purportedly executed in his favour by Sh.Ram Gopal.

On the basis of the said agreement to sell, coupled with the possession,

the appellant was claiming himself to be the owner of the property and

accordingly sought cancellation of the sale deed dated 21.07.1971

purported to have been executed in favour of R-1 by R-2. It may also be

pertinent to mention here that although the sale deed which was

purportedly executed by R-2 in favour of R-1 was showing property no.F-

20/5 Verinder Nagar but subsequently a deed of correction was

purportedly executed by Sh.Ishwar Dass as well as by R-2 showing the

actual property was F-61/A, Verinder Nagar, New Delhi and thus

impinging on the title of the appellant.

5. One Smt.Joginder Kaur was also made a party in the suit as

defendant no.3. However, no averment with regard to her was made in

the entire plaint. R-1 and R-2 filed their written statement and contested

the claim of the appellant. On the pleadings of the parties, a number of

issues were framed and one of the issues which was issue no.10 with

regard to the fact as to whether the appellant/plaintiff was entitled to

relief claimed by him with regard to the cancellation of the sale deed

dated 21.07.1971.

6. Both the parties adduced their respective evidence. The learned

trial court after appreciating the evidence, decided the said issue against

the present appellant on the ground that the appellant in order to seek the

cancellation of sale deed dated 21.07.1971 purported to have been

executed by R-2 in favour of R-1, it ought to have shown that he was the

owner of the suit property. It was held by the trial court that the appellant

had miserably failed to establish that he is the owner of the suit property

bearing no.F-61/A, Verinder Nagar, Delhi inasmuch as the agreement to

sell did not confer any title on him. Moreover, the original agreement

was not proved before the court.

7. The appellant feeling aggrieved by the aforesaid judgment and

decree, preferred an appeal and the appellate court visited the entire

evidence afresh and concurred with the learned trial court. Still not

feeling satisfied, the appellant has filed the present regular second appeal.

8. The second appeal is permissible only when a substantial question

of law is involved. The question as to whether the appellant was the

owner or not is a question of fact which has been ruled against him by a

concurrent finding of the two courts below. This does not raise any

substantial question of law as is sought to be submitted by the learned

counsel for the appellant before this court. Accordingly, this appeal has

no merit and the same is dismissed.

V.K. SHALI, J.

NOVEMBER 18, 2013 dm