Delhi High Court
Kamlesh vs Neelam Sharma & Anr. on 3 December, 2014
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: December 03, 2014
+ RSA No.374/2014
KAMLESH ..... Appellant
Through: Ms.Geeta Mehrotra, Mr.Mohit
Verma & Mrs.D.R.Tomar,
Advocates
versus
NEELAM SHARMA & ANR. ..... Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Caveat No.1071/2014
None has appeared for caveator despite advance notice of the
second appeal.
RSA No.374/2014 & C.M.No.19857/2014(for stay)
The concurrent findings of the courts below are that respondents-
plaintiffs are entitled to possession of suit property i.e first floor and
the roof over the first floor.
The facts of this case are already noticed in the opening paragraphs
of the trial court judgment and need no reiteration. Suffice it would be
to note that respondent No.1-plaintiff had sold a shop on the ground
floor of the suit property to respondent No.2 and respondent-plaintiff
RSA No.374/2014 Page 1
had retained ownership and possession of the entire first floor
constructed above the shop. Respondent No.2 had further sold the
shop to appellant herein. The case of respondent No.1-plaintiff is that
appellant had conspired with respondent No.2 and had broke open
locks of the suit property i.e. first floor portion belonging to
respondent No.1-plaintiff and refused to vacate it.
At the hearing, learned counsel for the appellant had submitted that
the question of law which arises in this appeal is that the judgments of
the courts below are based on surmises and are contrary to the
evidence. Attention of this Court was drawn to General Power of
Attorney (Ex.DW-1/8) to point out that on bare reading of this
document, it becomes evident that the entire suit property was sold
and not the shop on the ground floor alone and to substantiate this,
attention of this Court was drawn to Agreement to Sell (Ex.PW-1/D/7)
and Receipt (Ex.PW1/D/1). Thus, it was submitted that the judgments
of the Courts below are erroneous and deserve to be set aside and the
suit of respondent-plaintiff ought to be dismissed.
Upon hearing and on perusal of the judgment of the Courts below
and the record, I find that the Irrevocable General Power of Attorney
(Ex.DW1/8) was in respect of one shop only and not the entire suit
property. Clause 8 of this document (Ex.DW-1/8) has to be read in
respect of the shop in question and cannot be in respect of the whole
property. Similarly, Agreement to Sell (Ex.PW1/D/7) and the Receipt
(Ex.PW1/D/1) relate to the shop in question and not the entire
property. Merely because in the Receipt (Ex.PW1/D/1), it has been
said that the staircase would be common cannot be read to mean that
RSA No.374/2014 Page 2
this Receipt pertains to the entire suit property as this Receipt relates to
the shop in question only. The findings of both the Courts below are
that there is interpolation in the Receipt (Ex.PW1/D/1) regarding the
roof rights.
On a bare perusal of the Receipt (Ex.PW1/D/1), it becomes evident
that there is interpolation which has not been initialed by any of the
party and the Courts below have rightly held that the Receipt would
pertain to the shop in question only. It is pertinent to mention that
there is no mention of the roof rights in the Agreement to Sell or the
General Power of Attorney vide which shop in question was sold to
respondent No.2 who had, in turn, sold it to appellant herein. No
infirmity in the documents, vide which respondent No.2 had sold the
suit property to appellant, has been pointed out by learned counsel for
the appellant.
In the considered opinion of this Court, there is no perversity in the
concurrent findings returned against the appellant. No substantial
question of law arises in this Second Appeal. Consequentially, this
appeal and the applications are dismissed with no orders as to costs.
The caveat also stands discharged accordingly.
(SUNIL GAUR)
JUDGE
DECEMBER 03, 2014
ks
RSA No.374/2014 Page 3
