Shabana Rehman v. Mamta Biswas & Ors

RAJIV SAHAI ENDLAW, J. SEPTEMBER 13, 2018 bs

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 13th September, 2018. + RSA 15/2018 & CM No.4329/2018 (for stay) SHABANA REHMAN ..... Appellant Through: Mr. Suresh Sharma, Adv. with appellant-in-person. Versus MAMTA BISWAS & ORS ..... Respondents Through: Mr. Arvind Kumar Gupta and Mr. Prashant Bhardwaj, Advs. for R-1. 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 13th October, 2017 in RCA No.176/2016 of the Court of Additional District Judge-02, Shahdara] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 27th May, 2016 in Suit No.9419/2016 (Old No.RBT No.248/2012) of the Court of Additional Senior Civil Judge, Karkardooma] in a suit filed by the respondent No.1/plaintiff against the appellant/defendant and the respondents No.2&3/defendants. 2. This appeal came up first before this Court on 5th February, 2018, when the counsel for the respondent No.1/plaintiff appeared on caveat and the counsel for the appellant/defendant sought adjournment to file appropriate documents on record. Thereafter, the proceedings were adjourned from time to time. On 28th February, 2018, the counsel for the respondent No.1/plaintiff stated that the respondent No.1/plaintiff will not execute the decree till the next date of hearing. The said arrangement has continued till now. 3. The counsel for the appellant/defendant has been heard and the copies of the relevant Trial Court record perused. 4. The sine qua non for entertaining i.e. issuing notice of a Regular Second Appeal under Section 100 of the CPC being that the facts therein raise a substantial question of law, it has straightway been enquired from the counsel for the appellant/defendant, what is the substantial question of law entailed in this Regular Second Appeal, against the concurrent findings of the Suit Court and the First Appellate Court which are final Courts of fact as held in Damodar Lal Vs. Sohan Devi (2016) 3 SCC 78. 5. The counsel for the appellant/defendant has contended that the substantial question of law which arises is, of the suit from which this appeal arises being barred by Order II Rule 2 of the CPC. 6. The respondent No.1/plaintiff instituted the suit, from which this appeal arises, for recovery of possession of ground floor of property No.D- 378, Lane No.14, Laxmi Nagar, Delhi against her sons N.K. Rehman and Ranjan Biswas and their respective wives namely appellant/defendant and Kiran Biswas. It was the case of the respondent No.1/plaintiff in the plaint, (i) that she was the owner of the subject property and Christian by religion; (ii) that her son N.K. Rehman had however married the appellant/defendant who is Muslim by religion; (iii) that the sons and daughters-in-law of the respondent No.1/plaintiff, as members of the family of the respondent No.1/plaintiff, were residing on the ground floor of the property, on first floor whereof, the respondent No.1/plaintiff was residing along with her other family members; and, (iv) that the said sons and daughter-in-law of the respondent No.1/plaintiff had been creating nuisance and had not vacated the said ground floor, inspite of being called upon to do so. Reliefs thus, of permanent injunction restraining the appellant/defendant and the respondents No.2&3/defendants from parting with possession of the ground floor of the property and of mandatory injunction directing the appellant/defendant and the respondents No.2&3/defendants to vacate the property were sought in the suit. 7. The counsel for the appellant/defendant has drawn attention to the plea taken in the written statement filed by the appellant/defendant and Kiran Biswas (who is stated to have since died) to the effect that the subject suit was barred by Order II Rule 2 of the CPC. 8. The counsel for the appellant/defendant has drawn attention to the pla