Sheela Devi vs Krishna & Ors
2015 Latest Caselaw 640 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      RSA No.366/2014
                                      Decided on : 22nd January, 2015


    SHEELA DEVI                                            ..... Appellant
                       Through:     Mr.S.C.Jain, Adv.

                       versus

    KRISHNA & 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 learned counsel for the appellant has contended that the

appellant had filed a suit for declaration with consequential relief and

permanent injunction seeking to be declared owner of suit property

bearing No.512, Gali No.9, Kanti Nagar, Delhi which was earlier

known as Plot No.34, Block-B, out of Khasra No.61/229/2 situated at

Village Ghondli in the abadi of Sant Nagar, Shahdara, Delhi, which

has been negatived by the two courts below by a concurrent finding.

4. In this regard, it has been contended by the learned counsel for

the appellant that the impugned order has not taken note of the fact

that the appellant had proved the documents regarding her ownership

of the suit property.

5. It has also been contended by the learned counsel for the

appellant that the court has taken into consideration the factum of

dismissal of the petition filed by the appellant/plaintiff before the

Addl.Rent Controller under Sections 14(1)(a) & (b) of the Delhi Rent

Control Act for eviction of the respondents/defendants from the suit

property on account of non payment of rent and sub-letting and

accordingly he raised a question as to whether the finding returned by

the court of Addl.Rent Controller could be treated as a ruling binding

upon the Civil Court with regard to taking a view as to the ownership

in a suit for declaration. The learned counsel for the appellant has

contended that this constitutes a substantial question of law.

6. I have considered the submission made by the learned counsel

for the appellant as well as gone through the record of the case.

7. I am of the considered opinion that the case does not involve

any substantial question of law and accordingly does not deserve even issuance of notice to the opposite party.

8. As a matter of fact, the husband of the appellant had earlier

appeared and sought permission to withdraw the appeal which was

not permitted by the court on account of the fact that the counsel for

the appellant was not present.

9. On the next date of hearing, the counsel did not appear and the

husband of the appellant stated that he never made such a statement.

Consequently, the court was compelled to fix the case for formulation

of a substantial question of law.

10. Be that as it may, it may be pertinent to here to give a brief

facts of the case to understand the submission made by the learned

counsel for the appellant to see as to whether any question is involved

in the matter or not.

11. The appellant/plaintiff filed a suit for declaration with a

consequential relief of permanent injunction against the

respondents/defendants seeking to be declared to be declared the

owner of the suit property. This was contested by the

respondents/defendants. The trial court framed issues in the matter on

10.03.2004 where issue No.1 was as follows:

"Whether the plaintiff is the owner of the property in question?"

12. The appellant/plaintiff examined six witnesses in support of her

case, but did not herself enter into the witness box. On her behalf, the

son of the plaintiff appeared in the witness box as her attorney who is

stated to have proved the documents of ownership with respect to the

suit property.

13. The court, after hearing the arguments, has taken note of these

documents and has noted that first of all the non appearance of the

appellant/plaintiff in the witness is fatal to the case of the

appellant/plaintiff. For this purpose, the testimony of the PW-5, her

attorney, was not relied upon by the court as establishing the

ownership of the suit property as the court commented that the apex

court has categorically observed that the appellant/plaintiff may file a

suit through the attorney, but the attorney can testify only with regard

to testify only with regard to that portion of the testimony which is

known to him or her. In the instant case, the attorney did not know

about the entire transaction having taken place between the

appellant/plaintiff and the respondents/defendants. In this regard, the trial court has placed reliance on Janki Vasudev Bhojwani & Anr.

Vs.Indus Ind Bank Ltd. & Ors.; AIR 2005 SC 439 and Sudhir

Engineering vs. Nitco Roadways; 1995 RLR 286.

14. The second aspect on the basis of which the ownership of the

suit property was deemed to have been not established was that the

complete chain of title documents was not brought on record.

Because of these reasons, the appellant/plaintiff was not held to be the

owner of the suit property and thus the suit was dismissed. The first

appellate court has agreed with the finding returned by the trial court

which is sought to be assailed by the appellant/plaintiff now by filing

the present regular second appeal.

15. The contention of the learned counsel for the appellant as to

whether the finding returned by the Addl.Rent Controller would be

binding on the civil court is of no consequence. The trial court has

also taken note of the fact that before filing the present suit for

declaration, the appellant/plaintiff had filed an eviction petition

against the respondents/defendants under Sections 14(1)(a) & (b) of

the Delhi Rent Control Act, 1958 which was dismissed. The said

order of dismissal was challenged by the appellant/plaintiff before the learned appellate court which confirmed the finding returned by the

Addl.Rent Controller. The findings of the Addl.Rent Controller and

the Addl.Rent Control Tribunal were not challenged any further and

thus attained finality. Hence, the issue raised by the appellant/plaintiff

is barred by the principles of res judicata. This observation has

prompted the learned counsel for the appellant/plaintiff to raise a

question before this court as to whether the finding returned by the

Addl.Rent Controller is binding on the civil court or not. But as a

matter of fact, there was no occasion for him to do so nor is the

judgment of the Addl.Rent Controller is to be treated as res judicata

because the finding returned by Addl.Rent Controller is that there is

no relationship of landlord and tenant between the appellant/plaintiff

and the respondents/defendants while as in the civil court, the

question involved was with regard to ownership of the suit property.

A landlord need not be necessarily a owner but every owner is

necessarily a landlord. Therefore, the issues before the Addl.Rent

Controller and the Civil Court were totally different. De hors the

judgment of the Addl.Rent Controller, since the appellant/plaintiff has

not been able to establish her ownership, which is a question of fact and has been affirmed by the first appellate court, the said question

does not raise any substantial question of law so far as the present

forum is concerned.

16. I accordingly feel that the present appeal does not involve any

substantial question of law and the same is dismissed.

V.K. SHALI, J JANUARY 22, 2015/dm