Charan Singh vs Bhagmal
2015 Latest Caselaw 2189 Del

*                   HIGH COURT OF DELHI AT NEW DELHI

+                    R.S.A. No.67/2015 & C.M. No.2654/2015

                                    Decided on : 13th March, 2015

CHARAN SINGH                                       ...... Appellant
                      Through:   Mr. M. Ahmad for Mr. S.K. Tripathi &
                                 Mr. A.K. Suri, Advocates.

                        Versus

BHAGMAL                                            ...... Respondent

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

V.K. SHALI, J. (ORAL)

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

order dated 11.11.2014 passed by the learned Additional District Judge in

R.C.A. No.17/2012 upholding the judgment and decree passed by the

learned Civil Judge on 16.5.2003.

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

counsel has not been able to make out any substantial question of law

involved in the matter. Before disposing of the matter, it may be

pertinent here to mention that the present appellant initiated a suit for

possession and recovery of mesne profits against the respondent in

respect of suit property bearing No.85, Dr. Ambedkar Basti, Opposite

Khajurwali Gali, Shahdara, Delhi measuring 27 square yards alleging the

respondent to be the licensee under the appellant/plaintiff. It was his case

that he had purchased the aforesaid property from one Nepal Singh. The

respondent filed his written statement and disputed the fact that he is a

licensee under the appellant/plaintiff. He had himself claimed to be the

owner of the suit property and in occupation for more than 13 years prior

to the date of filing of the written statement. It was alleged by him that

he was running a furniture shop for that long period of time.

3. On the pleadings of the parties, following issues were framed :-

"1. Whether the plaintiff is the owner of the property in suit?

2. Whether the defendant was inducted as a licensee in the property in suit by the plaintiff as alleged in the plaint?

3. Whether the plaintiff is entitled to recover license fee as claimed in the plaint?

4. Whether the suit is not maintainable in view of preliminary objection No.1?

5. Relief."

4. Both the parties adduced their respective evidence in support of

their case. The appellant/plaintiff examined in support of his ownership

his own self as well as PW-3, Nepal Singh, who is purported to have sold

the property. The appellant proved various documents Ex. PW 1/1, Ex.

PW 1/2, Ex. PW 1/3 and Ex. PW 3/1, which are in the nature of GPA

along with agreement to sell, receipt, possession letter, etc. PW-3, Nepal

Singh, has admitted that he had executed these documents which are

being claimed by the appellant to be the documents of his own

ownership. However, during his cross-examination, he fell flat as he was

not able to establish his ownership qua the suit property. He had not

produced even a single document to establish his own ownership.

Therefore, the trial court after analysis of evidence of the

appellant/plaintiff arrived at a conclusion that the appellant has not been

able to prove his ownership. Moreover, no person can pass on a title

better than he has and as the Nepal Singh does not establish his title to the

property, he could not have sold the same to the present appellant.

5. As regards the second issue with regard to the respondent being a

licensee also, the appellant was not able to prove that the respondent was

a licensee. No receipt and agreement with regard to status of respondent

being a licensee was established. Even the oral evidence was not

sufficiently corroborated by other witnesses that he is a licensee.

Therefore, on both these scores, he failed to prove his case by

preponderance of probabilities.

6. The appellant/plaintiff feeling aggrieved preferred the first appeal

before the court of learned Additional District Judge, who has upheld the

judgment and decree of dismissal passed by the trial court.

7. Still feeling dissatisfied, the present regular second appeal has been

filed. The contention of the learned counsel for the appellant is that the

documents which are placed by him on record are establishing his

ownership and moreover, the respondent has admitted before the police

as well as in an application filed by him in these very proceedings that he

is the tenant and therefore, these points raise substantial question of law.

8. In my considered opinion, none of the submissions made by the

learned counsel raise any substantial question of law as the question 'as to

whether the appellant/plaintiff is the owner or not' is a question of fact

which has been ruled against the appellant concurrently by the two courts

after appreciation of evidence. Similarly, even if the application

purported to have been filed by the respondent before the trial court

during the proceedings stating himself to be the tenant is taken into

consideration, it nowhere says that he is a tenant under the present

appellant and consequently, nor is it the case of the appellant that the

respondent is a tenant so as to invoke the doctrine of estoppel. The

appellant had setup a definite case that the respondent is a licensee which

he had failed to establish. The appellant cannot succeed on the

deficiencies of the case of the respondent/defendant.

9. On examination of totality of circumstances, I am satisfied that no

substantial question of law is involved in the matter. Accordingly, the

appeal is dismissed.

V.K. SHALI, J.

MARCH 13, 2015 'AA'