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IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATIBHA RANI, J.
KAMLESH BHATTACHARYA - Appellant
Versus
P.L. KHERA & ORS. - Respondent
RSA 51 of 2017
Decided on : 10-02-2017
Seepage - Property Dispute - [RCA 51/2017] - The court discussed the legal provisions related to property disputes, liability for damages, and transfer of title. The court emphasized that the doctrine of lis pendens does not apply to the transfer of title and held that the respondents who purchased the property during the pendency of litigation were not liable for damages or restrictions on property use.
Fact of the Case:
The appellant filed a suit against the defendant for seepage issues in her property. The trial court dismissed the suit, and the first appellate court partially allowed the appeal, awarding damages and repair costs. The appellant then filed a second appeal under Section 100 CPC.
Finding of the Court:
The court found that the respondents who purchased the property during the litigation were not liable for damages or restrictions on property use. The court dismissed the second appeal as it did not involve any substantial question of law.
Issues: Property dispute, liability for damages, transfer of title, substantial question of law
Ratio Decidendi: The doctrine of lis pendens does not apply to the transfer of title. The High Court cannot set aside concurrent findings of facts given by the lower courts in a second appeal unless it involves a substantial question of law.
Final Decision: The second appeal was dismissed as it did not involve any substantial question of law.
CM No.5263/2017
1. Exemption allowed subject to all just exceptions.
2. Application is disposed of.
CM No.5264/2017
1. For the reasons stated in the application the delay of 10 days in re-filing the appeal is condoned.
2. The application is disposed of.
RSA 51/2017
1. This Regular Second Appeal has been preferred by the appellant/plaintiff impugning the judgment and decree dated 7th September, 2016 of the First Appellate Court in RCA No.60951/2016.
2. This appeal was preferred by the appellant impugning the decision of the learned Trial Court in Civil Suit No.114/2010 decided on 17th September, 2015.
3. Civil Suit No.114/2010 was filed by the appellant Smt.Kamlesh impleading Sh.P.L.Khera as the defendant, pleading as under:
(i) The plaintiff was occupying the First floor of the property bearing Flat No.3013/15, Gali No.19, Ranjeeet Nagar, New Delhi whereas the defendant was occupying the Second Floor of the said property.
(ii) The plaintiff was facing problem of seepage in her floor which according to her was due to improper use of washing machine by the defendant. Her oral requests to the defendant to rectify the defect so that seepage can be stopped, remained unheeded by him.
(iii) Legal notice dated 7th May, 2010 was served by her on the defendant which was also not complied with. Hence she filed a suit.
4. Since the defendant Sh.P.L.Khera failed to appear despite service, he was proceeded ex-parte. However, learned Trial Court by its judgment dated 17th December, 2011 dismissed the suit. The appellant preferred the appeal No.01/2012 which was disposed of vide order dated 13th March, 2012 remanding the case to the learned Trial Court with direction to appoint Civil Engineer or Expert from any Government department like PWD/MCD as a Local Commissioner and decide the matter afresh.
5. During pendency of the suit before the learned Trial Court, defendant Sh.P.L.Khera sold the same to Smt.Shakuntla Sharma and Smt.Rupali Sharma on 19th January, 2013. Thereafter both of them were also impleaded as defendants No.2 & 3 in the Civil Suit.
6. Vide judgment and decree dated 17th September, 2015, learned Trial Court directed defendants No.2 & 3 to allow the plaintiff to repair the source of seepage and ensure that in future no seepage originates once it is repaired. It was also held that since the seepage was in existence prior to the property being purchased by defendants No.2 & 3, they cannot be attributed with any negligence. On the question of awarding damages, learned Trial Court was of the view that rather than awarding the speculative damages it would be in the interest of justice to award actual cost of repair which shall be borne by defendant No.1 on actual basis. Learned Trial Court awarded Rs.20,000 towards damages for causing mental harassment to the appellant/plaintiff observing that both are senior citizens and have converted a small issue into a battle of egos as is visible from the counter allegations and number of complaints filed by the parties.
7. The First Appellate Court vide impugned judgment concurred with the finding of the learned Trial Court that defendants No.2 & 3 cannot be held liable to pay damages to the appellant/plaintiff. The First Appellate Court modified the order of the learned Trial Court granting the relief as under:
“34. In view of the above discussion, the appeal filed by the appellant/plaintiff against the impugned judgment and decree dated 17.09.2015 passed by the Ld. Trial Court is partly allowed. The judgment and decree of the Ld. Trial Court is modified as under:
(i) A decree for recovery of Rs.56,000/- towards the cost of the repairs is passed in favour of the appellant and against respondent/defendant no.1.
(ii) A decree for recovery of Rs.68,000/- is passed in favour of the appellant/plaintiff and against respondent/defendant no.1 for the mental harassment and agony.
(iii) The appellant/plaintiff is entitled for cost of the proceedings from respondent no.1.
8. The appellant/plaintiff was again not s
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