Delhi High Court
Akil Ahmad vs Abdul Hakim on 23 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23rd July, 2018
+ RSA 158/2017, CM No.21057/2017 (for stay) & CM
No.6788/2018 (u/O XXXIX Rule 2A CPC).
AKIL AHMAD ..... Appellant
Through: Mr. Jai Kumar Sinha, Adv.
versus
ABDUL HAKIM ..... Respondent
Through: Mr. Sanjay Singh,, Adv. for R-1.
Mr Akhil Sachar with Ms.
Sunanda Tulsyan, Adv. for R-2.
Mr. Ashish Uppal, Adv. for R-3.
SI Indrapal Singh, PS
MadhuVihar.
SI Hawa Singh (Main IO), Crime
Branch.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Regular Second Appeal under Section 100 of the Code of
Civil Procedure, 1908 (CPC) impugns the judgment [dated 23 rd
March, 2017 in RCA No.294/16 (CNR No.DLET01-00-2016) of the
Court of District Judge (East), Karkardooma Courts, Delhi] of
dismissal of First Appeal under Section 96 of the CPC preferred by
the appellant/plaintiff against the order [dated 19 th May, 2016 in CS
No.6445/2016 (Case ID No.02402C0024922013) of the Court of
Additional Civil Judge (East), Karkardooma Courts, Delhi] of
rejection of plaint in the suit filed by the appellant/plaintiff for
permanent injunction restraining respondent/defendant from forcibly
dispossessing the appellant/plaintiff from property No.A-188, Main
RSA No.158/2017 Page 1 of 6
Chandar Vihar, Khasra No.256/4, measuring 100 sq. yds., Mandawali,
Delhi - 110 092 as shown in the site plan filed along with plaint.
2. This Second Appeal came up before this Court first on 29 th
May, 2017, when, without indicating the substantial question of law
which arises, notice thereof was ordered to be issued and the
respondent/defendant, till further orders, restrained from dispossessing
the appellant/plaintiff from the property in possession of the
appellant/plaintiff at the address aforesaid.
3. The respondent appeared and sought time to engage an
Advocate and the Trial Court record was requisitioned.
4. The appellant/plaintiff has filed CM No.6788/2018 under Order
XXXIX Rule 2A of the CPC, also impleading the Station House
Officer (SHO), Police Station Madhu Vihar, Mandawali, Delhi - 110
092 therein and in pursuance whereto SI Indrapal Singh, PS
MadhuVihar and SI Hawa Singh (Main IO), Crime Branch are
appearing.
5. The counsel for the appellant/plaintiff and the counsel for the
respondent/defendant have been heard and the Trial Court record
requisitioned perused.
6. A perusal of the Trial Court record shows that the
respondent/defendant was proceeded ex parte in the suit from which
this appeal arises and vide ex parte order dated 12th February, 2013 the
respondent/defendant was restrained from forcibly dispossessing the
appellant/plaintiff from the property and the appellant/plaintiff
relegated to leading ex parte evidence. Thereafter an application was
filed by the respondent/defendant for setting aside of the ex parte and
RSA No.158/2017 Page 2 of 6
which application was allowed on 19th May, 2016, and on the same
day, arguments were heard on the plea of the counsel for the
respondent/defendant of the suit being not maintainable and vide order
of the same day, the plaint was rejected.
7. The appellant/plaintiff instituted the suit, from which this appeal
arises, pleading (i) that he was on 19th January, 1998 adopted by the
respondent/defendant and his wife Sayda Begum and was residing in
the property as their son; (ii) that Sayda Begum died, leaving a Will
bequeathing the property exclusively to the appellant/plaintiff; and,
(iii) that the respondent/defendant wanted to sell the property and was
attempting to forcibly dispossess the appellant/plaintiff therefrom.
Hence the suit for permanent injunction restraining forcible
dispossession.
8. The Suit Court rejected the plaint, reasoning that there is no
concept of adoption in Muslim law and thus the appellant/plaintiff was
not related to the respondent/defendant and the Will even if any in his
favour could not be for more than 1/3rd share in the property. It was
thus held that the appellant/plaintiff could not claim to have become
the owner of the property.
9. The First Appellate Court, in appeal, though has held that on
coming into force of the Juvenile Justice (Care and Protection of
Children) Act, 2000 even a Muslim can adopt and has also in this
regard relied on Shabnam Hashmi Vs. Union of India (2014) 4 SCC
1, but has further held that since adoption claimed by the
appellant/plaintiff was of prior to coming into force of the said Act
and as the Act is not retrospective, there was no merit in the appeal.
RSA No.158/2017 Page 3 of 6
10. The counsel for the appellant/plaintiff contends that the
respondent/defendant, in violation of the ex parte order dated 29th
May, 2017 in this appeal, has dispossessed the appellant/plaintiff from
the first floor in his occupation of the property aforesaid.
11. The counsel for the respondent/defendant, under instructions
from the respondent/defendant present in Court, states that the
appellant/plaintiff is in possession of the three rooms on the ground
floor of the property and the first floor is under the lock and key of the
respondent / defendant. It is also stated that the respondent/defendant
has already instituted a suit for recovery of possession of the portion
of the property in occupation of the appellant/plaintiff from the
appellant/plaintiff.
12. The counsel for the appellant/plaintiff, under instructions from
the appellant/plaintiff also present in Court, states that the
appellant/plaintiff is in possession of three shops on the ground floor
and was earlier also in possession of two rooms on the first floor and
from possession of which he has been divested.
13. SI Hawa Singh, who was the Investigating Officer (IO) of the
kalandra which was recorded on complaint, on enquiry states that
when the Police was called, both, appellant/plaintiff and the
respondent/defendant were on both the floors and he is unable to state
in which rooms.
14. The counsel for the appellant/plaintiff states that the
appellant/plaintiff has been dispossessed from the rooms on the first
floor inspite of the interim order in this appeal.
RSA No.158/2017 Page 4 of 6
15. In the aforesaid state of affairs, it is not deemed appropriate to
frame any substantial question of law in this Second Appeal, when the
suit from which this appeal arises, was only for permanent injunction
and in which, as per Anathula Sudhakar Vs. P. Buchi Reddy (2008) 4
SCC 594, no title was to be investigated and the only question was
whether the appellant/plaintiff was in settled possession. From the
stand of the respondent/defendant before the First Appellate Court, as
recorded in the judgment of the First Appellate Court, it appears that
the appellant/plaintiff was allowed to stay in one room only but in
August, 2012 tresspassed into three rooms, the possession of the
appellant / plaintiff of three rooms, at least since August, 2012 is
admitted.
16. It is thus deemed appropriate to dispose of this Second Appeal
as under:-
(i) The validity of the Will, if any, of Sayda Begum set-up
by the appellant/plaintiff in his favour need not be gone
into, in the suit for injunction in which only settled
possession is to be protected.
(ii) The respondent/defendant having admitted the
respondent/plaintiff to be in possession of three rooms on
the ground floor, is restrained by a decree of permanent
injunction from forcibly dispossessing the
appellant/plaintiff therefrom save by due process of law.
(iii) As far as the claim of the appellant/plaintiff with respect
to the two rooms on the first floor is concerned, the
appellant/plaintiff is granted liberty to, in the suit for
RSA No.158/2017 Page 5 of 6
possession aforesaid, agitate the same and if required also
make a counterclaim with respect thereto, inasmuch as
there is nothing before this Court, to hold that appellant /
plaintiff, on 29th May, 2017, was in possession of two
rooms also, on first floor and which will need enquiry by
recording evidence.
(iv) The decree for permanent injunction in favour of the
appellant/plaintiff is however made conditional on the
appellant/plaintiff not trespassing over any other part of
the property and making the claim for possession of the
two rooms on the first floor or any other portion of the
property only in accordance with law.
17. Decree sheet be drawn up.
18. The parties are left to bear their own costs.
19. A copy of this judgment along with a copy of the order of the
Suit Court and the First Appellate Court be sent to the Committee of
the Inspecting Judges of the Suit Court.
20. Suit Court record be sent back.
RAJIV SAHAI ENDLAW, J.
JULY 23, 2018
'pp'..
