Bishan Chand v. Ved Prakash ( Since Deceased) Thr Lrs & Anr

RAJIV SAHAI ENDLAW, J. SEPTEMBER 14, 2018 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 14th September, 2018 + RSA 131/2018, CM No.37323/2018 (for stay) & CM No.37326/2018 (for condonation of delay of 144 days in re-filing the appeal). BISHAN CHAND ..... Appellant Through: Mr. Hem C. Vashisht and Mr. Rahul Malik, Advs. Versus VED PRAKASH (SINCE DECEASED) THR LRS & ANR ..... Respondents 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 8th December, 2017 in CIS-RCA DJ-8726-2016 (CNR-DLST 01-000072-2013) of the Court of the District Judge (South)] of dismissal of First Appeal under Section 96 of the CPC filed by the appellant against the judgment and decree [dated 22nd November, 2013 in CS No.800/10/1996 (Unique Case ID No.02401C0070131998) of the Court of Civil Judge-06 (Central)] of dismissal of suit filed by the appellant/plaintiff against the two respondent/defendants, (i) for declaration that the appellant/plaintiff is the owner of plot/property No.B-34, Central Market, Madangir, New Delhi; (ii) for permanent injunction restraining the respondent/defendant no.1 from making any construction over the said property; (iii) for mandatory injunction directing the respondent/defendant no.1 to remove/demolish the illegal construction raised over the said property; and, (iv) and for recovery of possession of the said property from the respondent/defendant no.1. 2. The appeal came up first before this Court on 12th September, 2018, when on request on behalf of the counsel for the appellant/plaintiff, it was adjourned to today. 3. The appeal is accompanied with an application for condonation of delay in re-filing of 144 days. The question of considering the application for condonation of delay will arise only if the Second Appeal is found to entail a substantial question of law which is sine qua non for entertaining a Second Appeal as per dicta of the Supreme Court in Surat Singh Vs. Siri Bhagwan (2018) 4 SCC 562. 4. The counsel for the appellant/plaintiff has been heard. 5. The appellant/plaintiff and the two respondents/defendants are brothers. The appellant/plaintiff claimed to have purchased the said property from respondent/defendant no.2 through Agreement to Sell, Power of Attorney, Affidavit, Receipt etc. and further claimed to have allowed the respondent/defendant no.1 use of the said property. 6. The respondent/defendant no.2, in his written statement, denied Agreement to Sell and other documents on the basis of which the appellant/plaintiff claimed to have purchased the property. 7. The respondent/defendant no.1 claimed to be a tenant under the respondent/defendant no.2 in the property at a rent of Rs.100/- per month. Needless to state that if the occupation/possession of the respondent/defendant no.1 of the property is as a tenant, at a rent of Rs.100 per month, the Delhi Rent Control Act, 1958 would apply and under Section 14(1) and 50 thereof, the jurisdiction of the Civil Court to order recovery of possession would be barred. 8. The respondent/defendant no.2 in his written statement admitted the said tenancy of the respondent/defendant no.1. 9. However the respondent/defendant no.2, in his statement under Order X of the CPC, admitted his signatures on the Agreement to Sell, Power of Attorney, Affidavit, Receipt etc. in favour of the appellant/plaintiff but stated that the said signatures were obtained by the appellant/plaintiff by practicing misrepresentation. 10. The counsel for the appellant/plaintiff has argued that since the finding of both the Courts on the issue framed in the suit i.e. "Whether plaintiff has concealed material facts. If so, its effect? OPD" is in favour of the appellant/plaintiff, the Courts below have committed an illegality in still denying relief to the appellant/plaintiff. It is further argued that the appellant/plaintiff in the First Appeal filed an application under Order XLI Rul