Phoolwati vs Natho Devi & Ors
2015 Latest Caselaw 237 Del

*             HIGH COURT OF DELHI AT NEW DELHI

+                       RSA No.10/2015

                                Decided on : 12th January, 2015

    PHOOLWATI                                              ..... Appellant

                             Through:     Mr.R.P.S.Sirohi, Adv.

                             versus

    NATHO DEVI & ORS                                    ..... Respondent
                             Through
    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI

                      ORDER

    %                 12.01.2015
    CM No.480/2015

1. Allowed subject to deficiency being rectified.

2. The application stands disposed of.

R.S.A. No.10/2015

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

the judgment dated 21.11.2014 passed by the learned Addl.District

Judge by virtue of which the appeal of the appellant had been

dismissed and the judgment and decree passed by the trial court on

28.03.2013 in Suit No.347/2008 against the appellant has been

upheld.

2. The main contention of the learned counsel for the appellant

is that the judgment of the trial court as well as the first appellate

court suffer from perversity as there is no evidence on record with

regard to the factum of ownership of the property in question in

respect of which decree has been passed as well as there is no

evidence brought on record with regard to the partition of the

property owned by one Mr.Tula Ram.

3. I have considered the submission and perused the record.

4. Before dealing with the submission made by the learned

counsel for the appellant, it may be pertinent to give a brief facts of

the case.

5. It is not in dispute that one Sh.Tula Ram had purchased two

properties bearing Nos.7488 & 7489, Sidharth Nagar, Multani

Dhanda, Paharganj, Delhi. It is also not in dispute that Sh.Tula

Ram died on 27.11.1968 and he was survived by three sons namely

Sh.Ram Singh, Sh.Pyare Lal and Sh.Roop Chand and three

daughters Smt.Gaura Devi, Smt.Kalawtai and Smt.Kanta Devi.

6. The case which was set up by Sh.Roop Chand in the suit for

permanent injunction and possession was that, after the demise of

their father Sh.Tula Ram, a partition with respect of above mentioned properties had taken place amongst the three sons. The

property No.7488, Sidharth Nagar, Multani Dhanda, Paharganj,

Delhi ('property No.7488' for short) had fallen to the share of

Sh.Pyare Lal while as property No.7489, Sidharth Nagar, Multani

Dhanda, Paharganj, Delhi ('property No.7489' for short) had fallen

to the share of respondent/plaintiff i.e.Roop Chand. In addition to

this, there was a room built by Sh.Ram Singh on the first floor of

property No.7489 which is purported to have been sold by him to

the present appellant/Phoolwati while as other legal heirs of

Sh.Ram Singh, i.e. the widow and the daughter are purported to

have relinquished their share in the property in favour of the

respondent/plaintiff.

7. It was case of the respondent/plaintiff that he had built up a

room on the first floor property No.7489 and that room was

permitted to be used by the appellant/Phoolwati, widow of

Sh.Pyare Lal for the purpose of housing her guests. It was also

stated that the appellant had opened a door of this room which was

situated at property No.7489 towards property No.7488 to which

respondent/plaintiff Sh.Roop Chand did not object. However, later

on, the respondent/plaintiff asked the appellant/Smt. Phoolwati to vacate the premises and hand over the possession to him. As she

failed to do so, a suit was instituted in the month of July, 2008.

The appellant/defendant filed her written statement and did not

contest the factum of partition of the properties amongst the

brothers having taken place. She took the plea that the room which

was shown to be a part of property in question was wrongly

reflected in the site plan. As a matter, the same was part of

property No.7488. The court framed the following issues and

permitted the parties to adduce their respective evidence.

"1. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP.

2. Whether the suit of the plaintiff is under valued? OPD.

3. Relief.

4. Whether the plaintiff is entitled to possession of the property as prayed for? OPP."

8. So far as the trial court is concerned, after analyzing the

evidence produced by the respective sides, the court came to the

finding that the room in respect of which the suit had been filed,

that was admitted by the appellant to be a part of property No.7489 which had fallen to the share of respondent/plaintiff and, therefore,

the respondent/plaintiff was entitled not only to a decree of

permanent injunction, but also a decree of possession.

9. The appellant/defendant, feeling aggrieved by the aforesaid

judgment and decree, had preferred an appeal which was heard and

decided against the appellant by the learned Addl.District Judge

vide the impugned order dated 21.11.2014.

10. The main question which is urged by the learned counsel for

the appellant to be constituting substantial question of law is the

perversity in the finding of the trial court and the first appellate

court with regard to the factum of the room in respect of the

judgment and decree has been passed.

11. I have gone through the testimony of the parties. However, I

find that there is no perversity in the orders passed by the court

below. This on account of the fact that if one goes through the

affidavit of the appellant/defendant, she has nowhere contested that

the room which was alleged by her to be wrongly reflected as part

of property No.7489 was actually part of property No.7488. It is

not disputed by her in the affidavit or in the cross examination that

the partition had not taken place although the learned counsel for the appellant has now sought to challenge the very factum of

partition between the brothers. In addition to this, the trial court

has taken note of the fact that the appellant/defendant had admitted

in her examination that property No.7489 was exclusively

belonging to the respondent/plaintiff Mr.Roop Chand and no other

person had any interest in the said property although the case

which was set up by the appellant in the written statement was that

she had purchased the room which was built by Sh.Ram Singh at

property No.4789, does not get reflected in her testimony. On the

contrary, the testimony of respondent/plaintiff goes completely

unchallenged on the score that he had built a room on the property

No.4789 which he had permitted the appellant/defendant to use. It

also goes unchallenged that the respondent/plaintiff Sh.Roop

Chand had permitted the appellant/defendant to open a door to the

said room towards property No.7488 and, therefore, the factum of

non cross-examination of the respondent/plaintiff on that score, the

case of the respondent/plaintiff has been established by

preponderance of probability in his favour and accordingly a

decree of possession and permanent injunction has been passed.

12. By no stretch of imagination, it can be said that the finding

of the trial court or the first appellate court is perverse. The

question of perversity would only arise when a finding is returned

without there being an iota of evidence on record. On the contrary,

in the instant case, there is ample evidence established on record

that appellant was permitted to use the room on property No.4789

as a licensee and since that licence was withdrawn by the

respondent/plaintiff, therefore, she was under an obligation to

vacate the same.

13. I feel that no question of law much less a substantial

question of law is involved in the matter.

14. The appeal is accordingly is dismissed.

CM No.479/2015 (Stay)

1. In view of the dismissal of the appeal, no further directions

are called for on this application.

2. Dismissed.

V.K. SHALI, J JANUARY 12, 2015/dm