Delhi High Court
Kanwar Singh (Since Deceased) ... vs S.L. Jain & Ors on 24 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24th September, 2018.
+ RSA 56/2018 & CM No.13389/2018 (for exemption from filing
entire Trial Court record)
KANWAR SINGH (SINCE DECEASED)
THROUGH LRS ...Appellant
Through: Mr. N. Prabhakar and Mr. Dhruv
Sharma, Advs.
Versus
S.L. JAIN & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.13388/2018 (for exemption)
1. Allowed, subject to just exceptions.
2. The application stands disposed of.
RSA 56/2018 & CM No.13389/2018 (for exemption from filing entire
Trial Court record)
3. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 31 st
October, 2017 in RCA No.54629/16 of the Court of Additional District
Judge-03 (South-West)] of dismissal of First Appeal under Section 96 of
the CPC preferred by the appellants against the judgment and decree [dated
9th April, 2013 in Suit No.801/12 of the Court of Civil Judge-6 (West)] of
dismissal of the suit filed by the appellants/plaintiffs for (i) declaration of
the appellants/plaintiffs as the rightful owner of property bearing no.279
measuring 700 sq. yds. (14 biswas) consisting of built-up rooms shown in
RSA 56/2018 Page 1 of 4
the site plan annexed to the plaint, within the extended abadi of village
Isapur, Delhi; (ii) permanent injunction restraining the
respondents/defendants i.e. Block Development Officer, Panchayat
Secretary, Halka Patwari and Girdawar all of village Isapur and/or of the
district in which the said village is situated, from dispossessing the
appellants/plaintiffs or interfering in the possession of the
appellants/plaintiffs of the aforesaid property; and, (iii) recovery of
damages of Rs.2,00,000/- for the demolition action already carried out by
the respondents/defendants over a part of the property.
4. The detailed judgments of the Suit Court and the First Appellate
Court, find (i) that the demolition action was carried out over the land,
adjoining to the land of the appellants/plaintiffs, which had been
encroached upon by the appellants/plaintiffs; (ii) that in repeated
demarcations carried out in accordance with the Delhi Land Revenue Act,
1954, it was reported that the appellants/plaintiffs, besides their property
comprising of 700 sq. yds., had encroached over another 70 sq. yds.; (iii)
that the appellants/plaintiffs had not challenged the said demarcation
reports in accordance with the procedure prescribed therefor; and, (iv) that
the appellants/plaintiffs were already in possession of 700 sq. yds. to which
they claimed title and which was allotted to them in consolidation
proceedings.
5. I have thus, notwithstanding the substantial question of law
formulated in the memorandum of appeal, enquired from the counsel for the
appellants/plaintiffs, how, in the light of the concurrent findings of fact of
RSA 56/2018 Page 2 of 4
the Courts which are final courts of facts, any substantial question of law as
proposed arises.
6. The only arguments of the counsel for the appellants/plaintiffs are,
that the two demarcation reports, on the basis of which findings aforesaid
have been returned against the appellants/plaintiffs were in the absence of
the appellants/plaintiffs and the first demarcation report, which was carried
out in the presence of the appellants/plaintiffs, is in favour of the
appellants/plaintiffs.
7. I have enquired from the counsel for the appellants/plaintiffs, how
the demarcation reports can be challenged in a civil suit and whether not the
procedure for making a challenge thereto is prescribed in the Delhi Land
Revenue Act itself.
8. The counsel for the appellants/plaintiffs, though unable to controvert,
states that unfortunately no such challenge was made. He however contends
that this Court, under Order VII Rule 7 of the CPC, may consider the
challenge.
9. I am unable to agree.
10. Not only so, the same does not raise any substantial question of law.
The Courts below, which are the final courts of facts, have held that the
appellants/plaintiffs are still in possession of the property as per their own
site plan and the demarcation action was only with respect to the adjoining
property encroached upon by the appellants/plaintiffs.
RSA 56/2018 Page 3 of 4
11. The counsel for the appellants/plaintiffs now states that the
appellants/plaintiffs in fact, in the consolidation proceedings, as per the
masavi, were allotted 726 sq. yds. and not 700 sq. yds.
12. However on enquiry, whether not the suit from which the Second
Appeal arises, itself was for 700 sq. yds. and on the premise that the
appellants/plaintiffs were, in consolidation proceedings, allotted 700 sq.
yds. only, the counsel for the appellants/plaintiffs again states that
unfortunately the appellants/plaintiffs did not make the correct pleadings.
13. The appellants/plaintiffs can succeed on their own facts and cannot
succeed on what their case should have been pleaded in the suit from which
this appeal arises.
14. For the aforesaid reasons, the need to set out in detail the contents of
the pleadings and of the judgments of the Suit Court and the First Appellate
Court is not felt.
15. Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 24, 2018
'pp'
