Parmila Singh & Anr v. Ashok Saluja

RAJIV SAHAI ENDLAW, J. SEPTEMBER 07, 2018 'ak/bs'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 7th September, 2018 + RSA 21/2018, CM No.5119/2018(stay) & CM No.5120/2018(u/O.41 R-27 CPC) PARMILA SINGH & ANR ..... Appellants Through: Mr. K. Sunil with Mr. G.S. Singh & Mr. Mani Shankar, Advs. Versus ASHOK SALUJA ..... Respondent Through: None. 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 19th December, 2017 in RCA No.137/2017 of the Court of Additional District Judge-04, South-West] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellants/defendants against the judgment and decree [dated 29th August, 2017 in M No. 67/2016 of the Court of Additional Senior Civil Judge, South-West, Dwarka Courts] allowing the suit filed by the respondent/plaintiff for recovery of possession of property no. C-11, Second Floor, Jeevan Park, Pankha Road, New Delhi from the appellants/defendants. 2. This appeal came up before this Court first on 9th February, 2018 and has thereafter been adjourned from time to time without the aspect of admissibility thereof being considered. 3. The sine qua non for entertaining a Second Appeal being that it should raise a substantial question of law, the counsel for the appellants/defendants has been heard and the copies of the Suit Court Record and the First Appellate Court record annexed to the memorandum of appeal perused. 4. The counsel for the appellants/defendants has argued (i) that the respondent/plaintiff sued for possession on the basis of title i.e. a registered sale deed in his favour; (ii) however, the respondent/plaintiff did not prove any sale deed; (iii) attention in this regard is invited to para 4.1 of the judgment of the Suit Court recording that the respondent/plaintiff, along with his affidavit by way of examination-in-chief, tendered as Ex.PW1/A the photocopy of the sale deed but which was de-exhibited and marked as Mark- A; and (iv) that without the respondent/plaintiff having proved title, the suit for recovery of possession could not have been allowed. 5. Attention of the counsel for the appellants/defendants has been drawn to para 4.2 of the judgment of the Suit Court where it is recorded that the respondent/plaintiff, besides examining himself, had also examined as PW-2, official from the office of Sub-Registrar-II with whom the sale deed was registered and who had proved photocopy of the sale deed as Ex.PW2/1 and the original sale deed had been seen and returned. 6. Attention of the counsel for the appellants/defendants is also invited to para 5 of the judgment of the Suit Court recording that the appellants/defendants, in spite of a number of opportunities granted by the Suit Court, failed to cross-examine any of the witnesses of the respondent/plaintiff and the appellants/defendants also failed to lead any evidence of their own. 7. I have enquired from the counsel for the appellants/defendants, that in the face of aforesaid, how is it open to the appellants/defendants to contend that the sale deed, vide which the respondent/plaintiff claimed title, was not proved. 8. The counsel for the appellants/defendants invites attention to the evidence recorded on 4th July, 2017 of the official of the office of the Sub- Registrar-II and contends that the said witness had not brought the copy of the registered sale deed on the record of the Sub-Registrar-II and had only brought the register containing the entries of registration of sale deed. 9. There is no merit in the aforesaid contention also. The testimony of the official of the office of the Sub-Registrar-II examined as PW-2 by the respondent/plaintiff recorded on 4th July, 2017 by the Suit Court and photocopy of which has been filed by the appellants/defendants themselves at page 299 of the Paper Book, is as under:- "I say that I am a summoned witness. I have brought the summoned record i.e. sale deed register which con