Delhi High Court
Girdhari Lal vs Gurbhachan Singh & Ors on 7 December, 2016
$~ 14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: December 7, 2016
+ RSA 371/2016
GIRDHARI LAL ..... Appellant
Through: Mr.Manish Sharma, Advocate.
versus
GURBHACHAN SINGH & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
JUDGMENT (Oral)
CM No.45534/2016
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
CM No.45533/2016 (delay)
1. For the reasons stated in the application 19 days' delay in filing the
appeal is condoned.
2. The application stands disposed of.
RSA No.371/2016
1. This Second Appeal under Section 100 of the Code of Civil Procedure
has been filed against the judgment dated August 01, 2016 of the learned
First Appellate Court confirming the judgment dated March 23, 2012 of the
learned Trial Court.
2. Learned counsel for the appellant/plaintiff has submitted that the
Courts below could not have ignored the correctness of the layout plan of
Virender Nagar, Delhi which shows 4 mtr. wide road on the Southern side of
the property No.79E, Virender Nagar, Delhi, owned by the plaintiff.
3. Learned counsel for the appellant has also referred to a decision of this
Court in East Pakistant D.P. Association vs. Municipal Corporation of
Delhi in support of his submission.
4. Civil Suit No. 385/2006 was filed by the appellant/plaintiff impleading
Sh.Gurbachan Singh as defendant No.1, Municipal Corporation of Delhi as
defendant No.2 and Smt.Surinder Kaur as defendant No.3. Subsequently
Municipal Corporation of Delhi was deleted from the array of parties in this
case.
5. The facts as pleaded by the appellant/plaintiff before the learned Trial
Court are that he purchased two freehold plots adjacent to each other from
two different owners vide two different sale deeds. While the plot
admeasuring 100 sq. yds. was purchased from Krishna Devi, the adjoining
plot admeasuring 134 sq. yds. was purchased from Ramgopal. He raised
construction on the said plots which now bears No.79E, Virender Nagar,
Delhi. Plot No.79D is owned by defendant No.3 and defendant No.1 was
assigned the work of construction on the said plot by defendant No.1. A
wall has been constructed on the southern side of the property of the
appellant/plaintiff thereby blocking his door and window on that side and
depriving him of his right to have natural light and air. This construction has
been done by defendant No.1 and defendant No.1 by encroaching on the
4 mtrs. wide road which was on the Southern side of the property of the
appellant/plaintiff.
6. Suit was contested by defendant No.3 claiming herself to be the owner
of property bearing No.F43 and not 79D-1 as claimed by the
appellant/plaintiff. It was further pleaded that the plot of the
appellant/plaintiff was two side open with no road on the South side as
claimed by him.
7. After considering the evidence adduced by the parties, learned Trial
Court held that the Sale Deed Ex.PW-1/D 5A and Ex.PW2/D 5B vide which
the appellant/plaintiff claimed to have purchased the two plots, do not show
existence of any 4 mtr. wide road. In paragraph 8 & 9 of the judgment
learned Trial Court has given detailed reasons for not accepting the version
of the appellant/plaintiff that his property was three side open having 4 mtr.
wide road on the South side. Not only written statement filed by the MCD in
this regard but the conduct of the appellant/plaintiff in withholding the Sale
Deed from the Court has been adversely commented and contained
averments on existence of any 4 mtr. wide road and the two Sale Deeds
Ex.PW-1/D 5A and Ex.PW-2/D 5B could be brought on record only during
his cross examination. Learned Trial Court has also noted that even as per
the MCD there was only unauthorized construction and not encroachment on
the road.
8. The learned Trial Court dismissed the suit observing that the case of
the plaintiff is based only on the layout plan of Virender Nagar, Delhi which
in the given circumstances cannot be made basis of this suit.
9. The First Appellate Court re-appreciated the entire evidence as well
the lay out plan and held that the opening of door and window towards
Southern side appears to be at the time when there was open space in
Southern direction of the property of the plaintiff. This does not prove
existence of any road towards South of his property. Learned First Appellate
Court has also examined the directions recorded in the Sale Deeds when the
two plots were purchased by the appellant/plaintiff from two different
persons. There was no mention of existence of any 4 mtr. wide road on the
South side of the said property. The First Appellate Court has affirmed the
finding of the learned Trial Court that there was no road towards the South
side of the property of the appellant/plaintiff.
10. Before this Court the grievance of the appellant/plaintiff is based only
on the lay out plan and submit that the lay out plan could not have been
contrary to the existing situation. However, he does not dispute that
Virender Nagar was unauthorized colony which was regularized
subsequently. The fact that even the plaintiff has given one number i.e. 79E
to his property which in fact consists of two separate plots purchased from
two different persons. The manner in which part of the plot has been sold by
Smt.Surinder Kaur to two separate persons Sh.Gurpreet and Sh.Inder Mohan
Singh is an example in which the properties are sold and assigned numbers.
11. Reliance placed by learned counsel for the appellant on the decision of
this Court in East Pakistant D.P. Association vs. Municipal Corporation of
Delhi has absolutely no applicability to this case for the reason the issue
involved in that writ petition was alleged misuse of the zonal park in the
colony known as Chitranjan Park. But the MCD was proposing to use for
teh bazari business and the proposal was contrary to the zonal plan. Herein
the instant case no such issue is involved.
12. The general rule is that the Second Appeal cannot be entertained on
the issues of facts. High Court cannot disturb the finding of fact given by the
Courts below, nor an appeal can be admitted unless a case is made out under
Section 100 CPC and a substantial question of law is raised in the
memorandum of appeal. The settled position in this regard is that the High
Court should not interfere with the concurrent findings of the facts. After the
amendment in the year 1976, scope of Section 100 CPC has been further
curtailed. The Second Appellant Court has the jurisdiction to interfere under
Section 100 CPC only where substantial question of law is involved.
13. In my considered opinion the arguments raised by the learned counsel
for the appellant are misconceived inasmuch as if there was a 4 mtr. wide
road on the South side of the property of the appellant/plaintiff, it should
have been clearly so depicted not only in the two sale deeds vide which he
purchased the property but MCD in the written statement would have taken
this plea.
14. No substantial question of law therefore arises.
15. The appeal is dismissed.
16. No costs.
PRATIBHA RANI, J.
DECEMBER 07, 2016
'hkaur'
