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2020 Supreme(Del) 744
IN THE HIGH COURT OF DELHI AT NEW DELHI
Anu Malhotra, J.
Jagriti@gayatri - Appellant
Versus
Vikas Sharma & Ors. - Respondent
Regular Second Appeal No. 23 of 2019; Civil Miscellaneous No. 4782 of 2019
Decided On : 21-07-2020
Virendra Singh, Advocate, Rajiv Kumar Tomar, Advocate
Headnote:
The court held that the appellant's claim that the suit filed by the respondent seeking the grant of permanent and mandatory injunction as prayed by them without seeking the relief of declaration was not maintainable could not be upheld. No document whatsoever in support of the contention of the appellant that she had inherited the ownership rights from her spouse on his demise are placed on record. Thus, there is no infirmity whatsoever in the impugned judgment of the Ld. Trial Court dated 05.03.2018 as well as of the First Appellate Court dated 22.10.2018 which require the formulation of any substantial question of law whatsoever.
Fact of the Case:
The appellant, who is the daughter-in-law of the plaintiff, filed a second appeal challenging the judgment and decree of mandatory and permanent injunction dated 05.03.2018 in Suit No.171/2015 granted by the Ld. Trial Court of the ASCJ (East), Karkardooma Courts, Delhi in relation to the claim of the plaintiff Nos.1, 2 and 3 of that suit viz. Vikas Sharma, Sarla Sharma and Rajender Prasad Sharma under Order XII Rule 6 of the CPC and which was upheld by the Ld. ADJ-03 in the first appeal i.e. RCA DJ No.52/18, which judgment dated 22.10.2018 in the first appeal is assailed as well.
Finding of the Court:
The court held that there was no substantial question of law that arises for determination and as this Court cannot substitute its opinion for the opinion of the First Appellate Court unless it finds the conclusion drawn by the First Appellate Court or even of the Ld. Trial Court to be erroneous or contrary to the mandatory provision of law or being based on inadmissible evidence, in as much as there is nothing on the record to bring the same forth that there is any substantial question of law that arises which is a sine qua non as laid down by the Supreme Court in Union of India Vs Ibrahim Uddin & Anr., (2012) 8 SCC 148 for exercise of jurisdiction in terms of Section 100 of the CPC, 1908 as amended, the Second Appeal RSA No.23/2019 is liable to be dismissed and is thus dismissed.
Issues: 1. Whether the appellant's claim that the suit filed by the respondent seeking the grant of permanent and mandatory injunction as prayed by them without seeking the relief of declaration was not maintainable could be upheld? 2. Whether there was any infirmity whatsoever in the impugned judgment of the Ld. Trial Court dated 05.03.2018 as well as of the First Appellate Court dated 22.10.2018 which require the formulation of any substantial question of law whatsoever?
Ratio Decidendi: The court held that the appellant's claim that the suit filed by the respondent seeking the grant of permanent and mandatory injunction as prayed by them without seeking the relief of declaration was not maintainable could not be upheld. No document whatsoever in support of the contention of the appellant that she had inherited the ownership rights from her spouse on his demise are placed on record. Thus, there is no infirmity whatsoever in the impugned judgment of the Ld. Trial Court dated 05.03.2018 as well as of the First Appellate Court dated 22.10.2018 which require the formulation of any substantial question of law whatsoever.
Final Decision: The court dismissed the second appeal RSA No.23/2019.
JUDGMENT
Anu Malhotra, J. - The present Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, by the appellant assails the judgment and decree of mandatory and permanent injunction dated 05.03.2018 in Suit No.171/2015 granted by the Ld.Trial Court of the ASCJ (East), Karkardooma Courts, Delhi in relation to the claim of the plaintiff Nos.1, 2 and 3 of that suit viz. Vikas Sharma, Sarla Sharma and Rajender Prasad Sharma under Order XII Rule 6 of the CPC and which was upheld by the Ld. ADJ-03 in the first appeal i.e. RCA DJ No.52/18, which judgment dated 22.10.2018 in the first appeal is assailed as well.
2. Notice of the appeal and the accompanying application CM No.4782/2019 seeking the stay of the execution of the decree under Order XII Rule of the CPC dated 05.03.2018 was directed to be issued vide order dated 01.02.2019 to the respondents herein, who put in appearance through learned counsel and vide order dated 08.02.2019 both the Trial Court record and the record of the Appellate Court were requisitioned which have since been received and perused.
3. Submissions were made on behalf of either side and written submissions were also filed on behalf of respondents Nos.1, 2 and 3 i.e. Vikas Sharma S/o Rajendra Prasad Sharma, Sarla Sharma W/o Rajendra Prasad Sharma and Rajendra Prasad Sharma.
4. Vide order dated 08.02.2019, the operation of the impugned order was stayed pending determination of the aspect of the formulation of the essential question of law, if any, in the present appeal.
5. The averments made in the suit filed by the respondent Nos.1, 2 and 3 herein before the Trial Court through the suit of permanent and mandatory injunction and damages were to the effect that the plaintiff No.1 i.e. respondent no.1 herein Shri Vikas Sharma is the owner of property no.51/1A, Street No.13, East Azad Nagar, New Delhi-110051 comprising of one room, kitchen and bathroom on the second floor and one room, open space along with bathroom on third floor and that the said plaintiff no.1 i.e. respondent no.1 herein had purchased the said property from Smt. Santosh Kumari W/o Shri Ashok Kumar vide a sale deed was executed and registered in his favour on 28.09.2001 in the office of the Sub Registrar-VIII in the East district.
6. The plaintiffs of the suit as respondents herein had asserted in the plaint that the plaintiff no.1 had constructed the second floor and third floor in the said property and had already disposed off the ground floor and first floor of the said property and that the plaintiff no.1, his wife and plaintiff No.2 & 3 used to reside at the second floor and third floor of the property bearing no. 51/1A, Street No.13, East Azad Nagar, Delhi 110051 of which the electricity meter and connection is installed in the name of the plaintiff no.1 i.e. respondent no.1 herein and that the gas connection was also issued in the name of the plaintiff nos.1 and 2 i.e. respondent nos.1 and 2 herein. The plaintiffs i.e. the respondents herein had also submitted in the suit that the landline telephone connection from MTNL was also installed, in the name of the plaintiff no.2 and that the Aadhar Card of the plaintiff no.2 and his wife bore the address of the suit property and that even after marriage, the plaintiff no.1 i.e. respondent no.1 and his wife resided together at the address of the suit property.
7. It was averred in the said suit that the defendant no.1 i.e. the appellant herein is the daughter in law of the plaintiff no.2 arrayed as respondent no.2 herein and that the husband of the appellant was the elder brother of the plaintiff no.1 i.e. respondent no.1 herein had been permitted to stay in one room, kitchen, bathroom on the second floor of the property bearing no. 51/1A, Street No.13, East Azad Nagar, Delhi 110051 in the year 2011 as a licensee and had allowed him to use the goods of plaintiff no.1 i.e. respondent no.1 lying in the second floor on account of the close relations in the portion of t
