Delhi High Court
Satish Verma & Ors vs Sharbati Devi on 5 December, 2016
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: December 05, 2016
+ RSA 363/2016
SATISH VERMA & ORS ..... Appellants
Through: Mr.Rajeev Sharma, Ms.Radhalakshmi
R. And Mr.T.Raajat Krishna,
Advocates.
versus
SHARBATI DEVI ..... Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
JUDGMENT (Oral)
CM No.44864/2016
1. Exemption allowed, subject to all just exceptions.
2. Application stands disposed of.
CM No.44865/2016 & CM No.44866/2016
1. For the reasons stated in the applications, two days delay in filing and
two days delay in re-filing the appeal is condoned.
2. Both the applications are disposed of.
RSA 363/2016
1. This Regular Second Appeal has been filed by the appellants
impugning the concurrent judgments by the Courts below; judgment dated
08.07.2014 passed by the learned Trial Court dismissing the suit filed by the
appellants and judgment dated 20.07.2016 passed by the First Appellate
Court upholding the decision of the learned Trial Court.
2. Learned counsel for the appellants has submitted that in the statement
before the police the respondent/defendant admitted himself to the tenant
under Chander Mal. The appellants are claiming their ownership on the
basis of Will executed by Sh.Chander Mal thus being a tenant the
respondent/defendant cannot challenge the ownership of the landlord or
dispute the relationship of landlord and tenant between the parties. Thus, the
findings by the Courts below being perverse are liable to the set aside.
3. In brief the case of the appellants is that Civil Suit No. 293/2011 was
filed by the appellants/plaintiffs against Smt.Sharbati Devi widow of late
Sh.Phool Singh praying for a decree of ejectment in respect of the suit
property as well decree for recovery of `31,000/- with interest towards
damages and mesne profit with effect from 1.8.2011.
4. The case of the appellants/plaintiffs before the learned trial Court was
that respondent/defendant was a tenant of Sh.Chander Mal at monthly rent of
`30 excluding other charges. Sh.Chander Mal left behind him a Will in
favour of the appellants/plaintiffs which was duly registered with the Sub-
Registrar on 21st April, 1980. Since the respondent/defendant had not
paid any rent for a period of 30 years prior to filing of the suit, the
legally recoverable rent for the preceding three years was claimed vide
notice dated 10th July, 2011. It was pleaded that the tenancy was in respect of
open land hence provisions of Delhi Rent Control Act are not applicable to
the suit property. After the expiry of period of 15 days from the service of
notice, the status of the defendant in the said property has become that of an
unauthorized occupant. It was also pleaded that the suit property can fetch
rent of `50,000/- per month and claimed ₹29920/- towards damages from
01.08.2011 till the filing of the suit.
5. The suit was contested by the respondent/defendant by filing written
statement pleading that Sh.Phool Singh, husband of the defendant had been
in possession of the suit property since 1959 and after his death his legal
heirs are in possession of the suit property which is duly constructed house
and all of them are residing there. The suit property is assessed to house tax
and mutated in the name of the respondent/defendant in the records of MCD.
The respondent/defendant claimed to be owner in possession of the suit
property which was uninterrupted, open and hostile throughout. Any
relationship of landlord and tenant either between Sh.Phool Singh and
Sh.Chander Mal was denied. The liability to pay any rent, damages or mesne
profit was also denied as there existed no relationship of landlord and tenant
between the parties.
6. Since the findings of the Courts below have been challenged mainly
on the ground of an answer appearing during cross-examination of a witness
which was in the context of the statement recorded by the police in case FIR
No. 635/74 Ex.P-4, learned trial Court has considered the same to be beyond
pleading. Learned trial Court has also referred to the statements made vide
Ex.P-4 recorded on 18.12.1994, on 26.10.1994 observing that Sh.Chander
Mal was never admitted to be owner of the suit property i.e. Plot No.WZ-66,
Khampur. Learned trial Court held that there existed no relationship of
landlord and tenant between the parties and dismissed the suit.
7. The First Appellate Court re-appreciated the entire evidence and
concurred with the findings of the learned Trial Court for the reasons given
in para Nos. 13 to 15 as under:-
"13. In the present case, the suit of the plaintiff would fail if no
evidence is produced on record by the parties regarding the
existence of the relationship of landlord and tenant between the
plaintiff and the defendant. The plaintiff would fail in the
absence of the proof of the existence of relationship of landlord
and tenant between the parties. The perusal of the record
reveals that the plaintiffs have alleged that the tenancy of suit
property was created by one Sh.Chandermal. The plaintiffs has
failed to produce any evidence regarding the creation of the
tenancy in favour of the defendant. The plaintiffs have failed to
prove any other documents regarding the existence of the
relationship of the landlord and tenant between the plaintiffs
and the defendant. The plaintiff have neither proved the
existence of the tenancy during the lifetime of Sh.Chandermal,
nor with the present plaintiff.
14. The plaintiffs have attempted to prove the existence of the
tenancy by relying upon the documents Ex.P-4. The careful
perusal of the documents Ex.P-4 reveals that there is no specific
admission by the defendant in her cross-examination regarding
the existence of relationship of landlord and tenant between her
and the plaintiff or that Sh.Chandermal regarding the suit
property. It is well settled law that the admissions should be
clear, specific and unequivocal to be read against a party. A
broader analysis of Ex. P-4 of the defendants reveals that there
is no admission regarding the existence of the relationship of
the landlord and tenant between the plaintiff and the defendant
or between the predecessor in interest of the plaintiff and the
defendant. Except the documents Ex.P-4, the plaintiffs have fails
to produce on record any other documents to prove the
existence of the relationship of landlord and tenant between the
plaintiff and the defendant regarding the suit property. The
plaintiffs have also failed to establish by way of oral testimony,
the existence of relationship of landlord and tenant between the
parties to the suit.
15. The learned trial Court after examining the pleading and
material on record has come to the conclusion that the plaintiff
has failed to prove the relationship of landlord and tenant
between the parties. There is no illegality or infirmity in the
findings of the learned trial Court. The findings of the learned
trial Court are based on the material produced by the parties on
record. The findings of the learned trial Court is in consonance
with the material on record. The ground of the appeal raised by
the appellants is not tenable in the eyes of law."
8. During the course of hearing, learned counsel for the appellants
himself has referred to only one line in the cross examination of
Smt.Sharbati to urge that substantial question of law arises in this appeal.
But without referring to the context in which the cross-examination was
conducted. Rather the suggestion given to her was that she was a trespasser.
In that case there could not be any relationship of landlord and tenant
between the parties which was otherwise not proved by any oral or
documentary evidence. The relevant lines of the cross examination of
Smt.Sharbati (at page No.86 & 87 of the appeal) on which learned counsel
for the appellants contends that substantial question of law arises are as
under:-
'.....I did not state before the police that father of Bhagwan
Dass had a lathi in his hand . It is incorrect to suggest that
tooth of Daya Nand was not broken or it was artificial teeth
which was taken out himself and it showed the shocket to the
doctor. It is incorrect to suggest that our men had assaulted
Satish accd. S./o Bhagwan Dass and had threatened to kill him.
It is correct that the father of Bhagwan Dass is the owner of
the land and we are lessee. It is correct that we have not paid
any rent to the owners for the last more than 20 years. It is
incorrect to suggest that the lessee was Daya Nand and we all
tresspassers. It is correct that Bhagwan Dass was a
Mpl.Councilor during those days........'
9. The scope of jurisdiction of High Court while hearing second appeal
has been considered by the Supreme Court in Umerkhan vs. Bismillabi @
Babulal Shaikh and Ors. AIR 2012 SC 1646 as under:-
'13. In our view, the very jurisdiction of the High Court in
hearing a second appeal is founded on the formulation of a
substantial question of law. The judgment of the High Court is
rendered patently illegal, if a second appeal is heard and
judgment and decree appealed against is reversed without
formulating a substantial question of law. The second appellate
jurisdiction of the High Court under Section 100 is not akin to
the appellate jurisdiction under Section 96 of the Code; it is
restricted to such substantial question or questions of law that
may arise from the judgment and decree appealed against. As a
matter of law, a second appeal is entertain able by the High
Court only upon its satisfaction that a substantial question of
law is involved in the matter and its formulation thereof.
Section 100 of the Code provides that the second appeal shall
be heard on the question so formulated. It is, however, open to
the High Court to reframe substantial question of law or frame
substantial question of law afresh or hold that no substantial
question of law is involved at the time of hearing the second
appeal but reversal of the judgment and decree passed in
appeal by a court subordinate to it in exercise of jurisdiction
under Section 100 of the Code is impermissible without
formulating substantial question of law and a decision on such
question. This Court has been bringing to the notice of the High
Courts the constraints of Section 100 of the Code and the
mandate of the law contained in Section 101 that no second
appeal shall lie except on the ground mentioned in Section 100,
yet it appears that the fundamental legal position concerning
jurisdiction of the High Court in second appeal is ignored and
overlooked time and again. The present appeal is unfortunately
one of such matters where High Court interfered with the
judgment and decree of the first appellate court in total
disregard of the above legal position.
14. In Ishwar Dass Jain (Dead) through L.Rs. v. Sohan Lal
(Dead) by L.Rs. MANU/SC/0747/1999 : (2000) 1 SCC 434, in
paragraph 10 (page 441) of the Report, this Court stated:
Now under Section 100 Code of Civil Procedure,
after the 1976 Amendment, it is essential for the
High Court to formulate a substantial question of
law and it is not permissible to reverse the
judgment of the first appellate court without doing
so.
15. In Roop Singh (Dead) through L.Rs. v. Ram Singh (Dead)
through L.Rs. MANU/SC/0204/2000 : (2000) 3 SCC 708, this
Court reminded the High Courts, in para 7 (page 713) of the
report, that the second appellate jurisdiction of High Court was
confined to appeals involving substantial question of law. This
Court said:
It is to be reiterated that under Section 100 Code
of Civil Procedure jurisdiction of the High Court
to entertain a second appeal is confined only to
such appeals which involve a substantial question
of law and it does not confer any jurisdiction on
the High Court to interfere with pure questions of
fact while exercising its jurisdiction under Section
100 Code of Civil Procedure....'
10. The evidence led before the learned Trial Court has been correctly re-
appreciated by the First Appellate Court while concurring with the finding of
learned Trial Court. Since the second appeal cannot be entertained in a
casual manner the appellants are required to shows that the second appeal
raises a substantial question of law.
11. Since no substantial question of law is raised in this Regular Second
Appeal, the appeal is hereby dismissed.
12. No costs.
PRATIBHA RANI, J.
DECEMBER 05, 2016
'st'
