Delhi High Court
Shri Kishan Lal vs Shyam Babu & Ors. on 14 February, 2017
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: February 14, 2017
+ RSA 53/2017
SHRI KISHAN LAL ..... Appellant
Through: Mr.Rajeev Sharma & Ms.Sakshi
Sachdeva, Advocates
versus
SHYAM BABU & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
JUDGMENT (Oral)
CM No.5836/2017
Exemption allowed, subject to all just exceptions.
Application stands disposed of.
RSA 53/2017
1. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 is filed by the appellant/defendant impugning the
concurrent decision of the two courts below; i.e. judgment dated 5 th
November, 2016 passed by the First Appellate Court in RCA No.13/2016
and judgment dated 16th February, 2016 passed by the learned Trial Court in
Civil Suit No.296/2006, decreeing the suit filed by the respondents/plaintiffs
for possession and perpetual injunction with respect to property No.B-1135,
Shahbad Dairy, Delhi-110042.
2. Learned counsel for the appellant has submitted that the suit property
was purchased by him from Smt.Munni Devi, who is mother of the
respondents/plaintiffs on 20th June, 1986 vide ''bikrinama'' (which is an
unregistered document) executed against sale consideration of `20,000/-
which was paid by him to Smt.Munni Devi in presence of two witnesses. It
has been contended that the appellant has been in possession of the suit
property since the date of purchase. It was only in the year 2004 that the
respondents/plaintiffs threatened to dispossess him. The appellant filed a suit
for permanent injunction against the respondents and their associates Jai
Prakash. Thereafter the Civil Suit No.296/2006 was filed by the
respondents/plaintiffs only as a counter blast to the suit for injunction filed
against them.
3. Learned counsel for the appellant has further contended that both the
Courts below have not truly appreciated the evidence while decreeing the
suit of the respondents/plaintiffs for the relief of possession and perpetual
injunction hence this appeal raises a substantial question of law.
4. On being questioned as to what was the fate of suit for injunction filed
by the appellant/defendant, learned counsel for the appellant informs that the
said suit has been dismissed.
5. With a view to appreciate the contention raised on behalf of the
appellant and whether this appeal raises any substantial question of law, it is
necessary to refer to the rival pleadings.
6. The Civil Suit No.296/2006 was filed by the legal heirs of late Sh.Ram
Parkash pleading that Sh.Ram Prakash was earlier residing in a jhuggi near
AB Block Primary School, Shalimar Bagh, Delhi. The jhuggi cluster caught
fire. Thereafter the jhuggi dwellers were allotted plots measuring 12-1/2 sq.
yards at Shahbad Dairy, Delhi. Sh.Ram Parkash was allotted plot bearing
No.B-1135, Shahbad Dairy, Delhi vide allotment letter No.1880 dated 24 th
April, 1986. Sh.Ram Parkash has expired on 9th December, 1989. When the
respondents/plaintiffs visited the plot in the year 2004, they found that the
door of the property had been broken open and Sh.Ram Singh, father of the
appellant/defendant was in possession. On being questioned, he agreed to
remove his goods from there. Subsequently the appellant/defendant occupied
the suit property. When the appellant/defendant refused to vacate, a police
complaint was also lodged against him on 4th October, 2004 at Police Post
Shahbad Dairy.
7. In the written statement, the defence taken by the appellant/defendant
is that he became owner of the suit property having purchased the same from
Smt.Munni Devi on 20th June, 1986 for a total sale consideration of
₹20,000/- and a 'birkrinama' was also executed by her in his favour.
8. The learned Trial Court decreed the suit for possession noting that
Smt.Munni Devi had no title vested in her so as to execute any 'bikrinama'
in favour of the appellant/defendant. On 20th June, 1986 i.e. the date of
'bikrinama', Ram Parkash, the allottee was very much alive hence the whole
defence of the appellant/defendant that he purchased the suit property from
its owner fails. Learned Trial Court also noted that the 'bikrinama' pertained
to property No.D-1135, Shahbad Dairy whereas the suit property is B-1135,
Shahbad Dairy hence no title could have been passed to him in respect of the
suit property.
9. The First Appellate Court concurred with the findings of the learned
Trial Court.
10. During the course of hearing today learned counsel for the appellant
did not dispute the fact that the allottee of the suit property i.e. B-1135,
Shahbad Dairy was Sh.Ram Parkash and on the date of 'bikrinama' i.e. 20th
June, 1986 he was alive.
11. The entire defence of the appellant/defendant that he is owner of the
suit property on the strength of unregistered 'bikrinama' executed in his
favour by Smt.Munni Devi - mother of the respondents/plaintiff has rightly
been rejected by both the Courts below as she was not having any title in the
suit property which she could transfer in favour of the appellant/defendant.
12. During course of hearing learned counsel for the appellant has tried to
take the plea of the appellant/defendant becoming owner of the suit property
by way of adverse possession. This plea was never taken in the written
statement. Rather his whole defence is that he is owner of the property. The
plea of ownership by virtue of title deed referred to as 'bikrinama' and the
plea of becoming owner by adverse possession cannot co-exist.
13. It is settled legal position that in second appeal, High Court cannot set
aside concurrent findings of fact given by the Courts below which is
supported by the documentary evidence led by the respondents/plaintiffs.
14. The second appeal can be entertained only if a substantial question of
law is raised. The rationale behind is that appreciation and re-appreciation of
an evidence must come to an end with the first appeal.
15. I am of the considered view that the findings of both the Courts below
are based on proper appreciation of facts and evidence adduced before the
learned Trial Court and does not suffer from any kind of perversity so as to
require interference by this Court in exercise of jurisdiction under Section
100 of Code of Civil Procedure.
16. In view of above, no substantial question of law arises in this appeal.
Hence the appeal is dismissed.
17. The parties to bear their own costs.
CM No.5837/2017
Dismissed as infructuous.
PRATIBHA RANI
(JUDGE)
FEBRUARY 14, 2017
'pg'
