Feroz Alam & Ors. vs Muzzaiyana Parveen & Ors.
2014 Latest Caselaw 6031 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Date of Decision: November 21, 2014

+     RSA 354/2014
      FEROZ ALAM & ORS.                                ..... Appellants
                   Through:           Mr. L.S. Chaudhary, Mr. Ajay
                                      Chaudhary, Ms. Pratibha Gupta,
                                      Mr. Mahesh Tripathi & Ms. Ritu
                                      Gautam, Advocates

                         versus

      MUZZAIYANA PARVEEN & ORS.         ..... Respondents
                  Through: Mr. Amresh Kumar, Advocate

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                         JUDGMENT

%                          ORAL

Caveat No.1031/2014

      Respondent is represented through counsel.
      Caveat stands discharged.

RSA 354/2014 & C.M.No.19175/2014 & C.M.No.19176/2014

The concurrent findings returned by both the courts below are that respondent-plaintiff is entitled to suit for possession, rendition of accounts etc. The factual matrix of this case already stands noted by the trial court in the impugned judgment and needs no reiteration.

At the hearing, it was submitted by learned counsel for appellants-

RSA NO. 354/2014 Page 1 defendants that parties are related to each other and the dispute inter se parties can be mediated upon.

Counsel for respondents-plaintiffs submits that there is no possibility of mediation in this second appeal, as appellants-defendants are merely licensee in the suit premises. The question raised in this second appeal by counsel for appellants is whether trial court lacked pecuniary jurisdiction to deal with the subject matter of this suit, as respondents- plaintiffs themselves had admitted that the suit property is valued at `20,00,000/- and the finding returned in the impugned judgment on this aspect is erroneous, as question of jurisdiction goes to the root of the matter.

Learned counsel for appellants submits that appellants-defendants are the registered owner of the suit property and when respondents derive the title out of the suit property then they cannot question the title of the appellants-defendants in the suit property. It is pointed out that both the courts below have not dealt with this aspect.

It is vehemently urged on behalf of appellants that appellants had spent `12,00,000/- on the construction in the suit property and reliance is placed upon Section 60 (b) of The Indian Easement Act, 1882 to submit that in such a situation, the license of appellants in the suit property cannot be cancelled. It is pointed out that both the courts below have not dealt on this aspect.

Upon hearing and on perusal of the impugned judgments and the material on record, I find that merely because the value of the suit property is more than the pecuniary jurisdiction of the trial court, it would not per se render the concurrent findings returned by the courts below

RSA NO. 354/2014 Page 2 perverse, as it has not been shown as to what prejudice appellants suffer. On this aspect, the First Appellate Court has placed reliance upon decisions in AIR 1997 Raj 19; 1996 SCC (1) 720 & AIR 1981 SC 1683 to conclude that there is no failure of justice on account of respondents- plaintiffs filing the suit before the Civil Judge. Even at the hearing of this appeal, it was not shown as to what prejudice appellants suffer. Rather appellants gain to have an adjudication of the subject matter at two levels. The findings returned against the appellants by both the courts below is that appellants have failed to bring on record any evidence to show that they had spend `12,00,000/- on construction in the suit property. Mere production of a diary is not sufficient unless the source of the funds is disclosed. In the facts of the instant case, aforesaid view can be reasonably taken. The plea of adverse possession taken by the appellants- defendants was rightly not pressed. The suit of respondents-plaintiffs is not hit by Section 60 (b) of The Indian Easement Act, 1882. Infact, appellants-defendants have been found to be permissive users of the suit property.

The concurrent findings returned by both the courts below do not suffer from any perversity. No substantial question of law arises in this second appeal. Consequentially, this appeal and applications are dismissed with no order as to costs.

                                                          (SUNIL GAUR)
                                                            JUDGE

NOVEMBER 21, 2014
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RSA NO. 354/2014                                                       Page 3