Madhu vs Ashok Kumar
2013 Latest Caselaw 5551 Del

*                HIGH COURT OF DELHI AT NEW DELHI

+                           RSA No.57/2011

                                       Date of Decision : 29.11.2013

MADHU                                               ..... Appellant

                         Through:      Mr.J.C.Mahindroo, Advocate.

                              versus
ASHOK KUMAR                                         ..... Respondent
                         Through

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

V.K. SHALI, J. (ORAL)

CM No.6584/2011

1. Allowed subject to deficiency being rectified.

The application stands disposed of.

CM No.6585/2011 (Condonation of Delay)

1. For the reasons stated in the application, the delay of one day in

filing the instant appeal is condoned and the application is allowed.

RSA No.57/2011 & CM No.6583/2011 (Stay)

1. This is a regular second appeal which is pending in this court since

31.03.2011. No substantial question of law has been formulated till date.

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

formulation of a substantial question of law involved in the matter. It has

been contended by the learned counsel for the appellant that the property

in question being C-1/62B, Ashok Vihar, Phase-II, Delhi-110052, was

purchased from the funds emanating from the father of the appellant and,

therefore, the suit property was an ancestral property. On account of the

demise of her father on 11.02.2000, the appellant being one of the legal

heirs, inherited the property along with the respondent, who is the brother

of the appellant. It has also been contended that the appellant had filed an

application under Section 26 r/w Section 12 of the Domestic Violence

Act, 2005 for treating the house in question as a shared accommodation

and, therefore, the appellant could not be dispossessed from the suit

property.

3. Prima facie, I feel that the questions which are sought to be raised

by the appellant with regard to the property in question being an ancestral

property or for that matter, the property being a shared accommodation,

are questions of fact which cannot be adjudicated in the instant regular

second appeal. It may be pertinent here to give a brief background of the

case.

4. The respondent/plaintiff filed a suit for recovery of possession and

mesne profits against the present appellant/defendant. On the pleadings

of the parties, the following issues were framed:

" i) Whether the plaintiff is entitled to recover the possession of the first floor portion of property no.C- 1/62B, Ashok Vihar, Phase-II, Delhi-110052, from the defendant? OPP.

ii) Whether the plaintiff is entitled to recover the mesne profits from the defendant? If so, at what rate and for what period? OPP.

iii) Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD.

iv) Whether the market value of the suit property is `18 lacs? OPD.

v) Relief."

5. So far as the present appellant is concerned, she had resisted the

suit. However, no plea of shared accommodation was taken in the

pleadings. Therefore, the plea of the property in question being a shared

accommodation is something which is beyond the pleadings of the suit.

As regards the suit property being ancestral, the respondent had proved a

conveyance deed ExPW1/1 purported to have been executed by the DDA

in his favour. This conveyance deed was executed by the DDA much

prior to the date of death of the father of the respondent. On the basis of

the said conveyance deed, a decree for possession was passed in favour of

the respondent holding him to be the owner of the suit property and the

appellant was also directed to pay `250/- as damages for the pre-suit

period and `500/- per month from 01.03.2003 till possession of the

property in question is handed over to the respondent/plaintiff.

6. The appellant feeling aggrieved preferred an appeal being RCA

No.28/2008 before the first appellate court where all these pleas, which

are sought to be urged before this court, were raised. The first appellate

court did not find any merit in the appeal and dismissed the same. The

plea of the appellant as regards the property in question being a shared

accommodation under Domestic Violence Act, 2005 was raked up for the

first time before the appellate court and that was not dealt with. The

question whether an accommodation is a shared accommodation or not is

a essentially a question of fact. When there is no pleading in this regard,

the question of adducing proof of the same does not arise. In any case,

the appellant did not adduce any evidence. I do not find any question of

law arising from the appeal much less a substantial question of law.

7. Accordingly, the present appeal is totally misconceived and the

same is dismissed.

V.K. SHALI, J.

NOVEMBER 29, 2013 dm