* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 90/2010 & CM Nos. 8406-07/2010
Date of Decision: May 06, 2010
PRABHU DAYAL ..... Appellant
Through: Mr.Bhupesh Saini, Advocate.
Versus
SH. SHAMBHU DAYAL (DECEASED) ..... Respondents
Through: None.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral)
RSA No.90/2010
Impugned in this appeal is the judgment and decree of the First
Appellate Court dated 18th February 2010, whereby suit for mandatory
injunction filed by the predecessor-in-interest of the respondents was
decreed and the appellant was directed to hand over the vacant possession
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of the suit property bearing No.16/1555-E, Bapa Nagar, Arya Samaj Road,
Karol Bagh, New Delhi, as shown in red colour in the site plan Ex.PW-1/2
to the respondents within three months.
2. Parties to the suit i.e. Shambhu Dayal and appellant Prabhu
Dayal are real brothers. Shambhu Dayal, predecessor-in-interest of the
respondents claimed that he was owner of property bearing No.16/1555-E,
Bapa Nagar, a three storeyed building. He had permitted his
brother/appellant herein (defendant in the suit) to use and occupy the said
property except one shop on the ground floor which is in possession of the
respondents, purely on license basis with an understanding that as and when
he needed the property, appellant would vacate the same. However, when
Shambhu Dayal asked the appellant to hand over vacant possession of the
property, he refused. He failed to vacate and hand over possession of the
suit property despite service of legal notice dated 13th September 1998.
Therefore, he filed a suit for mandatory injunction seeking direction against
the appellant to vacate the portion of the suit property in his possession and
hand over vacant and peaceful possession of the same to the respondent.
3. Appellant in his written statement denied that property was
exclusively owned by Shambhu Dayal and alleged that property was owned
by father of the parties along with another property bearing No.16/1700-E,
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Bapa Nagar, Karol Bagh, New Delhi, which is in possession of the
respondents. Appellant claimed his possession in the suit property in his
own right.
4. Trial Court dismissed the suit of the respondents on 17th
August, 2002. Respondents filed a Regular Civil Appeal No.205/02 before
the First Appellate Court against the judgment and decree of the Trial
Court. Appellate Court vide its impugned judgment and decree was pleased
to set aside the judgment and decree of the Trial Court, allowed the appeal
and granted a decree for mandatory injunction in favour of the respondents,
directing the appellant to vacate the suit property and hand over possession
of the same within three months.
5. Mr. Bhupesh Saini, counsel appearing on behalf of the
appellant has argued that substantial questions of law are required to be
formulated in this appeal, as the Appellate Court granted mandatory
injunction in favour of the respondents without recovery of court fees,
because in the garb of mandatory injunction, respondent had sought
possession of the suit property. He further argued that only Attorney of the
respondents was examined and Shambhu Dayal never stepped in the
witness box to depose in his favour and therefore, Appellate Court
committed an error in accepting testimony of the Attorney. He submitted
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that Appellate Court has committed illegality in declaring respondents as
owners of the property without any sufficient proof of ownership.
6. Trial Court, while dismissing suit of the respondents was
weighed by the fact that predecessor-in-interest of respondents himself did
not step in the witness box to prove that he was the owner of the property,
instead his son Narender Kumar, Special Power of Attorney Holder had
appeared as PW1. While relying upon ‘Bhaguji Bayaji Pokale Vs. Kantilal
Baban Gunjawals’, 1998 (3) CCC 377 (Rajasthan), Trial Court observed,
that since plaintiff had not appeared in the witness box in person, his
Attorney Holder was not entitled to appear as a witness on behalf of the
plaintiff by virtue of provisions of Order 3 Rule 2 CPC; hence his testimony
was of no assistance to the plaintiff and therefore, he failed to prove that he
was the owner of the property in suit. Trial Court also observed that the
documents placed on record by the plaintiff in the form of house tax
receipts, payment receipts, lease hold charges receipts, water bills etc. did
not, in any manner, establish the title of the plaintiff qua the suit property.
7. First Appellate Court while disagreeing with the findings of
the Trial Court made it clear that non-examination of the respondent in no
manner affected his case as none of the documents proved on record could
have been better proved by the respondent in his testimony. Court also
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observed that no such evidence required from the mouth of the respondent
was missing and that appellant had proved his case. In the absence of any
evidence to the contrary on part of the appellant to demolish the case of the
respondent, Appellate Court considered the documentary evidence available
on record and proved in evidence by the respondent to come to the
conclusion that qua the appellant, respondent was the owner of the suit
property. Appellate Court also observed that none of the judgments relied
upon by the Trial Court to conclude that non-appearance of the respondent
in the witness box had damaged his case, were applicable to the facts and
circumstances of the case in hand.
8. Perusal of the impugned judgment clearly indicate that the
Appellate Court based his findings on appreciation of oral as well as
documentary evidence only. Under these circumstances, no substantial
question of law arises in this case. It is an established principle of law that
in second appeal, this Court has no power to reassess the entire oral as well
as documentary evidence to appreciate the judgment of the First Appellate
Court or of the Trial Court, specially when it is not the case of the appellant
that the Court gave perverse findings. Decision in this case is purely based
on evidence adduced on record. True that, respondents could not produce
any title documents to show that property in suit was owned by them, but
the fact remains that appellant also failed to substantiate his stand that the
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suit property was purchased by his father and that he was in possession of
the property in his own right. It Shambhu Dayal who had been paying
house tax, lease hold charges, water and electricity bills etc. of the property
in question.
9. Admittedly, appellant did not file a single document to
indicate that he was not in permissible user of the property in suit and that
he and his family members were living there in their own right.
10. In view of my aforesaid discussion, no substantial question of
law is involved in this appeal. It being without any merit is hereby
dismissed.
CM Nos. 8406/2010 (for stay) & 8407/2010 (for exemption)
11. Since the appeal has been dismissed, both these applications
have become infructuous and the same are accordingly dismissed.
(ARUNA SURESH)
JUDGE
MAY 06, 2010
sb
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