Gayatri Gupta v. Bimla Devi

RAJIV SAHAI ENDLAW, J

JULY 25, 2018 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 25th July, 2018 + RSA 140/2017 & CM No.29522/2018 (of the respondent for condonation of delay of 41 days in filing reply to the appeal). GAYATRI GUPTA ..... Appellant Through: Mr. S.C. Singhal, Adv. versus BIMLA DEVI ..... Respondent Through: Mr. Vivek B.Saharya, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 10th February, 2017 in RCA No.10/14 (60731/16) of the Court of the Additional District Judge (West)-01] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 29th January, 2013 in Suit No.129/03/09 (Unique ID No.02401C547872003) of the Court of the Civil Judge (Central-02)] of dismissal of suit filed by the appellant/plaintiff against the respondent/defendant. 2. This appeal came up first before this Court on 16th May, 2017, when the following order was passed:- "RSA 140/2017 1. This Regular Second Appeal is filed under Section 100 CPC impugning the concurrent judgments of the courts below; of the trial court dated 29.1.2013 and the first appellate court dated 10.2.2017; by which the suit for possession and damages filed by the appellant/plaintiff has been dismissed. 2. The case put up by the appellant/plaintiff was that the respondent/defendant was inducted as a tenant under a rent agreement and that the defendant did not pay even a single month's rent. The rent agreement was filed in Court, but the same was dis-believed especially because the appellant/plaintiff filed no documents whatsoever to prove the ownership of the suit property. In fact, it is stated before this Court that the suit property was purchased by the appellant/plaintiff from the respondent/defendant. 3. Not only no documents were filed to prove the ownership, the appellant/plaintiff has also not filed documents to show acting upon the ownership of the suit property by showing mutation in the municipal record. There is however a ground 'M' which is urged in this regular second appeal of mutation having been done vide receipt dated 7.6.2009 but this receipt has also not been filed and proved in the trial court by the appellant/plaintiff. In fact, it is stated that the appellant/plaintiff thereafter has continuously paid property tax and he has the original receipts with him. 4. The facts of this case are peculiar because if the judgments of the courts below are allowed to stand it will result in a very undesirable position that the property will have no owner because appellant/plaintiff failed to prove the ownership and defendant/respondent also claimed ownership also failed to prove the same. In law, ownership of a property cannot be in vacuum and therefore this Court exercises its power under Order 41 Rule 27 CPC read with Section 165 of the Evidence Act, 1872 to permit the appellant/plaintiff, on oral prayer of the appellant/plaintiff, to lead additional evidence before the court below as regards not only the ownership documents but also the factum with respect to mutation having been carried out in the name of the appellant/plaintiff and also that the appellant/plaintiff has thereafter being regularly paying property tax with respect to the suit property every year. 5. I have also held so in the case of Surjit Singh Vs. Kishori Lal in RSA No. 277/2007 decided on 8th May, 2014 and which judgment has been upheld by the Supreme Court vide its judgment dated 22.2.2016 in SLP No. 21573/2014. 6. Accordingly, in terms of the aforesaid observations let notice be issued to the respondent on filing of process fee, both in the ordinary method as well as by registered AD post, returnable on 25th September, 2017. 7. Trial court record be requisitioned." 3. The counsel for the respondent/defendant has filed reply to the appeal along with CM No.29522/2018 for condonation of delay of 41 days in filing thereof. For