Akil Ahmad v. Abdul Hakim

RAJIV SAHAI ENDLAW, J. JULY 23, 2018 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 23rd July, 2018 + RSA 158/2017, CM No.21057/2017 (for stay) & CM No.6788/2018 (u/O XXXIX Rule 2A CPC). AKIL AHMAD ..... Appellant Through: Mr. Jai Kumar Sinha, Adv. versus ABDUL HAKIM ..... Respondent Through: Mr. Sanjay Singh,, Adv. for R-1. Mr Akhil Sachar with Ms. Sunanda Tulsyan, Adv. for R-2. Mr. Ashish Uppal, Adv. for R-3. SI Indrapal Singh, PS MadhuVihar. SI Hawa Singh (Main IO), Crime Branch. 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 [dated 23rd March, 2017 in RCA No.294/16 (CNR No.DLET01-00-2016) of the Court of District Judge (East), Karkardooma Courts, Delhi] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant/plaintiff against the order [dated 19th May, 2016 in CS No.6445/2016 (Case ID No.02402C0024922013) of the Court of Additional Civil Judge (East), Karkardooma Courts, Delhi] of rejection of plaint in the suit filed by the appellant/plaintiff for permanent injunction restraining respondent/defendant from forcibly dispossessing the appellant/plaintiff from property No.A-188, Main Chandar Vihar, Khasra No.256/4, measuring 100 sq. yds., Mandawali, Delhi – 110 092 as shown in the site plan filed along with plaint. 2. This Second Appeal came up before this Court first on 29th May, 2017, when, without indicating the substantial question of law which arises, notice thereof was ordered to be issued and the respondent/defendant, till further orders, restrained from dispossessing the appellant/plaintiff from the property in possession of the appellant/plaintiff at the address aforesaid. 3. The respondent appeared and sought time to engage an Advocate and the Trial Court record was requisitioned. 4. The appellant/plaintiff has filed CM No.6788/2018 under Order XXXIX Rule 2A of the CPC, also impleading the Station House Officer (SHO), Police Station Madhu Vihar, Mandawali, Delhi – 110 092 therein and in pursuance whereto SI Indrapal Singh, PS MadhuVihar and SI Hawa Singh (Main IO), Crime Branch are appearing. 5. The counsel for the appellant/plaintiff and the counsel for the respondent/defendant have been heard and the Trial Court record requisitioned perused. 6. A perusal of the Trial Court record shows that the respondent/defendant was proceeded ex parte in the suit from which this appeal arises and vide ex parte order dated 12th February, 2013 the respondent/defendant was restrained from forcibly dispossessing the appellant/plaintiff from the property and the appellant/plaintiff relegated to leading ex parte evidence. Thereafter an application was filed by the respondent/defendant for setting aside of the ex parte and which application was allowed on 19th May, 2016, and on the same day, arguments were heard on the plea of the counsel for the respondent/defendant of the suit being not maintainable and vide order of the same day, the plaint was rejected. 7. The appellant/plaintiff instituted the suit, from which this appeal arises, pleading (i) that he was on 19th January, 1998 adopted by the respondent/defendant and his wife Sayda Begum and was residing in the property as their son; (ii) that Sayda Begum died, leaving a Will bequeathing the property exclusively to the appellant/plaintiff; and, (iii) that the respondent/defendant wanted to sell the property and was attempting to forcibly dispossess the appellant/plaintiff therefrom. Hence the suit for permanent injunction restraining forcible dispossession. 8. The Suit Court rejected the plaint, reasoning that there is no concept of adoption in Muslim law and thus the appellant/plaintiff was not related to the respondent/defendant and the Will even if any in his favour could not be for more than 1/3rd share in the property. It was thus held that the appellant/plaintiff could not claim to have become the owner of the property. 9. The First Appellate Court, in appeal,