* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 05.07.2010
+ RSA No.141/2003 & C.M.Appl.No.417/2003
WASU RAM ...........Appellant
Through: Mr. Girish Aggarwal &
Mr. Abhishek Aggarwal
Versus
HARI CHAND
Through LRs ..........Respondent
Through: Ms.Kanchan Bala for
Mr.Prasoon Kumar, Advocate
for respondent no.1.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers 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
INDERMEET KAUR, J. (Oral)
1. Substantial question of law formulated by this court reads as
follows:
“Whether in the absence of any evidence by the
respondents/defendants in support of their defence could
the courts below return a finding against the
appellant/plaintiff despite his un-rebutted evidence?”
2. This second appeal has been directed against the impugned
judgment dated 8.4.2003 whereby the appeal preferred by the
appellant/plaintiff namely Wasuram had been dismissed. The first
appellate court vide the aforenoted judgment had confirmed the
finding of the trial court dated 7.12.2002.
3. Wasu Ram had filed a suit for possession of property
no.1019, Ward No.7, Mehrauli, New Delhi wherein it had been
alleged that the defendant had illegally and unauthorisedly
RSA No.141/2003 Page 1 of 4
encroached upon a portion of his property i.e. about 50 sq.yds.
from which a Keekar tree along with other building material of the
plaintiff had also been removed. Decree of possession of 50 sq.yds
of this encroached portion of land along with Rs.6000/- as
damages for use and occupation as also a sum of Rs.2500/- on
account of the keekar tree had been claimed by the plaintiff.
4. The suit was contested by the defendant. The particulars of
the correctness of the suit property as also the defence of adverse
possession had been set up by the defendant. In para 2 of the
written statement the defendant while disputing the claim of the
plaintiff had averred that the plaintiff is in the habit of filing
frivolous suits and one such suit had been filed against Tirath
Dass. In the corresponding para of the replication no specific
denial of the same was made by the plaintiff.
5. One witness was examined by the plaintiff i.e. plaintiff
himself. Issue no.1 i.e. whether the defendant had unauthorisedly
trespassed and occupied the afornoted 50 sq.yds of property of the
plaintiff, was the crucial issue. It was decided against the
plaintiff. Testimony of PW-1 had been examined in detail by the
trial court wherein PW-1 had admitted that the house of the
defendant is about 50 steps away from his house and in-between,
the house of Tirath Dass and Smt.Champa is located; further that
none of the walls of the defendant are joined with the property of
the plaintiff.
6. It was in this background that the site plan Ex.PW-1/5 filed
by the plaintiff was examined and scrutinized by the trial court.
Trial court had held that it was for the plaintiff to have explained
as to how the house of Tirath Dass and Champa were constructed
RSA No.141/2003 Page 2 of 4
on the same plot falling in-between the property of the plaintiff
and the portion now claimed to be in illegal possession of the
defendant but no such evidence had been led by the plaintiff. Suit
of the plaintiff was dismissed on this count as also for non-joinder
of parties.
7. The first appellate court had also considered the
submissions which have now sought to be advanced before this
court. The submission of the counsel for the appellant that since
the defence of the defendant of adverse possession stood
disproved, the suit of the plaintiff should automatically have been
decreed has also been pleaded before this court. This plea had
been negatived by the appellate court. The evidence led before
the trial court had been re-appreciated and re-examined. It had
been held by the Additional District Judge that the plaintiff had
failed to prove his claim and the site plan filed by him had failed to
pinpoint the location of the house of Tirath Dass and Champa
which admittedly and undisputedly had fallen in-between the
property of the plaintiff and the property now claimed to be in the
illegal and unauthorized possession of the defendant. As such the
suit of the plaintiff had rightly been dismissed.
8. Both the fact-finding courts below had correctly appreciated
the oral and documentary evidence and which facts cannot now be
re-agitated before this court which is a court seized of jurisdiction
only if a substantial question of law arises. There is no rule of law
which states that merely because a party comes before the court
and files a claim, it has to be decreed. It was for the plaintiff to
have proved before the court that the defendant had
unauthorisedly and illegally occupied 50 sq.yds.of his property
RSA No.141/2003 Page 3 of 4
which he has failed to prove. Even though in the written
statement the defendant had taken a specific defence that the
plaintiff is in the habit of filing frivolous suits and one such suit
was filed against Tirath Dass, yet the plaintiff had not specifically
answered this either in his pleadings i.e. in his replication or in
evidence before the court below that Tirath Dass and Champa
were also in unauthorized and illegal possession of the property of
the plaintiff and he had filed suits for possession against them as
well which is now sought to be averred before this court. This
Court cannot go into questions of facts which were even otherwise
not pleaded before both the courts below.
9. The substantial question of law framed by this court has to
be answered in the negative and against the appellant.
10. This appeal is without any merit; it is dismissed.
INDERMEET KAUR, J.
JULY 05, 2010
rb
RSA No.141/2003 Page 4 of 4