Delhi High Court
Sh. Zinda Singh vs Sh. Sunil Kumar And Anr. on 7 November, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.331/2016
% 7th November, 2016
SH. ZINDA SINGH ..... Appellant
Through: Mr. Alok Sharma, Advocate with Ms.
Swati Kumar, Advocate.
versus
SH. SUNIL KUMAR AND ANR. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.41309/2016 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
+RSA No.331/2016 and C.M. No.41308/2016 (stay)
2. This Regular Second Appeal under Section 100 of the Code of
Civil Procedure, 1908 (CPC) is filed by the defendant no.1 in the suit
against the concurrent Judgments of the courts below; of the Trial Court
dated 23.4.2016 and the First Appellate Court dated 22.9.2016; by which the
courts below have decreed the suit for possession and injunction filed by the
respondent no.1/plaintiff with respect to the suit property admeasuring 55
sq. yds forming part of khasra no.73/20 situated in Revenue Estate of
Village Nangloi, commonly known as Nihar Vihar, Delhi and whose
municipal number is F 17A, Laxmi Park, Nihal Vihar, Nangloi, Delhi.
3. The facts of the case are that the respondent no.1/plaintiff filed
the subject suit for possession, declaration and permanent injunction with
respect to the suit property stating that the respondent no.1/plaintiff had
purchased rights in the suit property on 31.10.2003 from the respondent
no.2/defendant no.2. At the time of purchase, there was already existing a
built up temporary double storey construction. The appellant/defendant
no.1 was the son of maternal uncle of the respondent no.1/plaintiff, and was
therefore inducted as a tenant in the suit property at rent of Rs.3,000 per
month for residential purposes, but, the appellant/defendant no.1 stopped
making payment of rent and claimed that he had purchased the suit property
from the respondent no.2/defendant no.2. Hence the subject suit came to be
filed by the respondent no.1/plaintiff.
4. The appellant/defendant no.1 contested the suit by denying the
ownership of the suit property of the respondent no.1/plaintiff on account of
having purchased rights in the same from the respondent no.2/defendant
no.2. A reading of the written statement of the appellant/defendant no.1
shows that except for denying the ownership of the respondent
no.1/plaintiff, the appellant/defendant no.1 did not plead any ownership
rights in his favour of the suit property. The appellant/defendant no.1
claimed that he never paid any rent to the respondent no.1/plaintiff. In sum
and substance, the pleadings/written statement of the appellant/defendant
no.1 was only to deny ownership of the respondent no.1/plaintiff and denial
of any tenancy created in his favour by the respondent no.1/plaintiff.
5. The courts below have decreed the suit by making the
following salient observations and conclusions:-
(i) Respondent no.1/plaintiff established rights in the suit property on
account of purchasing rights in the same from respondent no.2/defendant
no.2 by virtue of the documents which were proved as Ex.PW1/B to
Ex.PW1/F.
(ii) The appellant/defendant no.1 though generally denied the ownership
of the respondent no.2/defendant no.2 and thus disentitlement of ownership
rights in the suit property of the respondent no.1/plaintiff for being acquired
from respondent no.2/defendant no.2, however, it was found that the
appellant/defendant no.1 had himself executed the documents being an
affidavit and indemnity bond Ex.PW2/D and Ex.PW2/G and submitted the
same to the local electricity authority M/s BSES for the grant of an
electricity connection and which documents admitted the ownership of the
respondent no.2/defendant no.2 over the suit property. Accordingly, it was
held by the courts below that the appellant/defendant no.1 cannot question
the ownership of the respondent no.2/defendant no.2.
6. Originally the suit was filed for injunction, but an amendment
of the plaint was allowed and an additional issue was framed for possession,
which was done at the stage of final arguments. However the additional
issue was to be decided only from the same pleadings and evidence which
was led by both the parties on record. It is also noted that even the original
claim of injunction in favour of the respondent no.1/plaintiff or denying
thereof by dismissing the suit in favour of the appellant/defendant no.1 was
on the basis of contesting claims of better rights in the suit property by the
respective parties.
7. It is therefore seen that the appellant/defendant no.1 had no
vestige of any title or rights in the suit property and his general
pleadings/written statement of denying any title of the respondent
no.1/plaintiff was rightly rejected as respondent no.1/plaintiff proved title
documents being Ex.PW1/B to Ex.PW1/F vide which respondent
no.1/plaintiff purchased rights from the original owner being respondent
no.2/defendant no.2, and which respondent no.2/defendant no.2 was
admitted to be the owner by the appellant/defendant no.1's as per the
documents being the affidavit and indemnity bond submitted to the local
electricity authority.
8. The courts below have rightly held that surely the respondent
no.1/plaintiff had a better title than the appellant/defendant no.1 who not
only filed complete vague pleadings, but also failed to even substantiate the
same remotely, much less of an alleged claim of ownership of the suit
property in his favour.
9. No substantial question of law arises for this Regular Second
Appeal to be entertained under Section 100 CPC. Dismissed.
NOVEMBER 07, 2016 VALMIKI J. MEHTA, J
Ne
