The importance of a 'question of law' in second appeal and the limitation of re-examining questions of fact in a second appeal.

JUDGMENT :

Vikram Aggarwal, J.

By way of the instant judgment, two regular second appeals titled above shall stand decided. Though, both appeals arise out of separate suits, the property in dispute and parties to the lis are same. Therefore, the common judgment.

2. One Late Sh. Diwan Chand had two sons namely Ashwani Kumar Love and Madhu Sudan. The dispute revolves around house No.2341, Sector 7-A, Housing Board Colony, Faridabad (hereinafter referred to as 'the disputed house'). Both brothers are engaged in the current litigation apart from two other persons namely Satya Prakash and Balraj Singh who are subsequent purchasers of the disputed house.

3. Since the parties to the lis and the disputed house are the same, the facts are being taken from Civil Suit No.236 dated 23.10.2013/16.09.2017, titled as 'Ashwani Kumar and others Versus Madhu Sudan' though essential facts from the other suit shall also be referred.

4 (i). Ashwani Kumar, Satya Prakash and Balraj Singh (hereinafter referred to as 'the plaintiffs') instituted a suit for mandatory injunction against Madhu Sudan (hereinafter referred to as 'the defendant) to vacate the ground floor of the disputed house of which he was in possession and for consequential relief of permanent injunction. The pleaded case was that the disputed house was allotted to plaintiff No. 1 Ashwani Kumar in a draw of lots held on 21.07.1973. Allotment letter dated 29.01.1973 was issued. The entire sale consideration was paid by plaintiff No. 1 Ashwani Kumar. The conveyance deed was executed on 01.07.1992 which was duly registered on 20.07.1992. The defendant, on account of being the younger out of the two, requested plaintiff No. 1 to permit him to reside on the ground floor of the disputed house as a licencee. The requisite permission was granted. However, subsequently, plaintiff No. 1 sold the disputed house to plaintiffs No.2 and 3 namely Satya Prakash and Balraj Singh vide registered sale deed dated 30.11.2011. The defendant had assured that the vacant possession of the disputed house would be handed over to the plaintiffs after the execution of the sale deed. However, since he did not honour his commitment, the suit was instituted. It was also pleaded that the defendant had instituted a suit for declaration with consequential relief of permanent injunction in which initially an ex parte order was passed but subsequently the same was vacated. The licencee was revoked by way of legal notice dated 04.10.2013 but despite the same, the defendant had not vacated the disputed house.

4(ii). The defendant opposed the suit. In the written statement, certain preliminary objections with regard to maintainability, cause of action, the suit being bad for mis-joinder and non-joinder of necessary parties etc. were raised. On merits, a stand was set up that the disputed house had infact been purchased by the father of the parties namely Sh. Diwan Chand and a family settlement had been executed, as per which, the ground floor had been given to the defendant whereas plaintiff No. 1 had been given the remaining portion. It was averred that the defendant was, therefore, the owner in possession of the ground floor in terms of the family settlement dated 09.09.1988 which had duly been signed by plaintiff No. 1, defendant, Sh. Diwan Chand and the witnesses. It was also averred that construction had been raised by Sh. Diwan Chand and all expenses had been borne by him.

4(iii). In the suit instituted by the defendant for declaration with consequential relief of permanent injunction, a similar stand was taken and an injunction was sought restraining the plaintiffs herein from interfering in his peaceful possession over the ground floor of the disputed house.

4(iv). From the pleadings of the parties, the following issues were framed in the present suit:-

1. Whether the plaintiff is entitled to a decree of mandatory injunction directing the defendant to hand over the peaceful and vacant possession of the property in dispute ment