Zile Singh v. Bhim Singh & Ors

RAJIV SAHAI ENDLAW, J. SEPTEMBER 24, 2018 'pp'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 24th September, 2018. + RSA 12/2012 & CM No.1645/2012 (for stay) ZILE SINGH ..... Appellant Through: Mr. Sunil Chauhan, Adv. Versus BHIM SINGH & ORS ..... Respondents Through: Mr. Ankit Jain with Mr. Sarvesh Rai and Mr. Siddhant Nath, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 25th November, 2011 in RCA No.210/00 of the Court of Senior Civil Judge (Central)] partly allowing the First Appeal preferred by the respondents/plaintiffs against the judgment and decree [dated 30th May, 2000 in Suit No.M-41/90 of the Court of Civil Judge, Delhi] of dismissal of the suit filed by the respondents/plaintiffs. 2. The appeal came up first before this Court on 27th January, 2012 when albeit without expressing satisfaction that the same entails any substantial question of law and without framing any substantial question of law, notice thereof was ordered to be issued and parties directed to maintain status quo with respect to the property subject matter of the suit from which this appeal arises. The said interim order has continued till now and the appeal has been pending since then. Vide order dated 26th September, 2014, the appeal was dismissed in default of appearance of the appellant/defendant but on application of the appellant/defendant on 24th October, 2016 was restored to its original position and since then is again being adjourned. Resultantly, notwithstanding this Second Appeal pending for the last six years, the substantial question of law if any entailed in this appeal has not been framed as yet. 3. The counsel for the respondents/plaintiffs, on enquiry fairly states that substantial question of law does indeed arise in this appeal. 4. I have proposed to the counsels that since the appeal is already six years old and since for framing substantial question of law also, the counsels will have to be heard and the records perused, whether, in the event of this Court also finding the appeal to be entailing any substantial question of law, the said substantial question of law can be framed and the counsels be heard thereon also and the appeal disposed of today itself. 5. Both the counsels have fairly agreed. 6. The counsels have been heard and the Suit court record and the First Appellate Court record requisitioned in this Court perused. 7. The suit, from which this second appeal arises, was filed by the respondents/plaintiffs against the appellant/defendant, claiming to be owner in possession of 1½ bighas of land situated in village Qutabgarh, Delhi within the old lal dora and seeking to restrain the appellant/defendant by a decree of permanent injunction, from taking forcible illegal possession of the said land as shown in the site plan filed along with the plaint. 8. The appellant/defendant contested the suit disputing the title and possession of the respondents/plaintiffs to the subject land and claiming himself to be the owner in possession of the land. 9. During the pendency of the suit, a commission was issued to determine the possession with respect to the land and to also report on the then position of construction on the land. 10. The Court Commissioner reported as under:- "2. That I was told by Sh. Ram Swaroop that a portion near door (x) as shown in the site plan attached, shown as (A) (B) and (C), were, according to Sh. Ram Swaroop the goods of the plaintiff were lying. Belonged to the plaintiff, however the plaintiff and his son of Bhim Singh, who was found present in the suit premises told me that they had been dispossessed of the said plot by the defendant with force. 3. That Sh. Perhlad Singh and Sh. Reme told me that the said plot is in possession of the defendant, however, they could not cleanly tell me regarding the goods lying at part (A) (B) and (C) but they told me that everything belonged to the defendant. 4. That