Delhi High Court
Banarsi Dass Decd. Thr. Lrs & Ors. vs Suraj Bhan & Ors. on 18 November, 2013
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.51/2012
Date of Decision : 18.11.2013
BANARSI DASS DECD. THR. LRS & ORS. ..... Appellant
Through: Mr.L.D.Adlakha, Advocate.
versus
SURAJ BHAN & 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.
2. I have heard the learned counsel for the appellant.
3. The main contention of the learned counsel for the appellant is that
his application under Order 41 Rule 27 CPC seeking permission to
adduce additional evidence was rejected on 20.04.2010 and the appeal
RCA No.197/2002 was also dismissed on the same date. It was stated by
the learned counsel for the appellant that the application under Order 41
Rule 27 CPC ought to have been allowed by the learned appellate court to
adduce evidence to show that he along with his brother was the recorded
owner of the suit land in the revenue record. The second contention of
the learned counsel for the appellant is to the effect that the learned trial
court as well as the first appellate court has failed to appreciate the
evidence adduced before the trial court.
4. The present appellant had filed a suit for permanent injunction
against the respondents/defendants i.e.Sh.Suraj Bhan, Sh.Ran Singh and
Sh.Dharam Pal. The case which was set up in the plaint by the appellant
was that he along with his younger brother Ram Narain had inherited a
parcel of land situated in village Baprola. The said parcel of land was
stated to have been owned by their ancestors and after inheritance of the
said parcel of land, Sh.Ram Narain and appellant divided the said parcel
of land as a consequence of which Sh.Ram Narain got the parcel of land
which was adjoining to the suit land. It was alleged that Ram Narain had
raised initially a kacha construction over his plot and latter made pucca
construction in his portion of the land in the year 1961 and the land which
had fallen to the share of the appellant/plaintiff was slightly low lying
which the appellant tried to get filled up with earth. He raised the level of
his plot by more than one foot so that the rain water did not collect there.
It is also alleged by him that he had got some bricks in order to raise
construction on the portion of land falling to his share. However, the
respondents/defendants had obstructed to the appellant raising the
construction. The stand of the respondents/defendants was that the
appellant is not the owner of the land and therefore had no right to
construct on the same. In any case, it was also alleged that the suit is bad
on account of non joinder of the necessary party Sh.Ram Narain, the
younger brother of the appellant/plaintiff inasmuch as the appellant
himself was claiming that he is the co-owner of the land in question along
with his younger brother Sh.Ram Narain.
5. On the pleadings of the parties, the following two issues were
framed:
"1) Whether the plaintiff is entitled to the
permanent injunction as prayed for? OPP.
2) Whether the suit is bad for non joinder of
necessary party Ram Narain? OPD.
3) Relief."
6. The parties adduced their respective evidence. The issue no.1 was
decided in favour of the respondents holding that the suit itself was not
maintainable on account of non joinder of necessary party because the
appellant was himself claiming to be co-owner of the land in question
along with his brother Ram Narain and, therefore, he ought to have
impleaded Sh.Ram Narain as a party. So far as the question of permanent
injunction is concerned, the same was refused by the trial court. The
appellant feeling aggrieved by the said dismissal of the suit, preferred an
appeal which was also dismissed vide the impugned order dated
20.04.2010 by the first appellate court.
7. In view of the dismissal of the appeal by the learned ADJ, the
appellant has filed the present regular second appeal and raised the issues
as have been urged before the courts below. All the contentions of the
learned counsel for the appellant are essentially questions of fact which
cannot be the subject matter of adjudication in a regular second appeal.
The regular second appeal is permissible only if a substantial question of
law is made or is involved in the second appeal. The learned counsel for
the appellant has failed to show any question of law much less a
substantial question of law arising from the present appeal. The question
which is involved in the instant case is as to whether the appellant was
entitled to permanent injunction, as prayed for in the suit, and the said
issue having been decided against the appellant concurrently by the two
courts below, no other question for adjudication by this court arises from
the instant appeal. The appeal is accordingly dismissed.
V.K. SHALI, J.
NOVEMBER 18, 2013
dm
