Rajni Saxena v. Rajinder Yadav & Ors

RAJIV SAHAI ENDLAW, J. OCTOBER 08, 2018 bs

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 8th October, 2018 + RSA 69/2017 & CM No.41911/2018 (for restoration of appeal) RAJNI SAXENA ..... Appellant Through: Mr. S.S. Ahluwalia and Mr. Jatin Teotia, Advs. Versus RAJINDER YADAV & ORS ..... 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) was filed impugning the judgment and decree [dated 11th July, 2016 in RCA No.15/2015 of the Court of Additional District Judged (Central)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 12th March, 2015 in Suit No.705/2014 (Unique ID No.0240K0040692011) of the Court of Civil Judge-05 (Central)] of dismissal of suit filed by the appellant/plaintiff for recovery of possession of immoveable property with mesne profits. 2. The appeal came up first before this Court on 3rd March, 2017 and thereafter on 8th March, 2017 when, without recording any satisfaction that the appeal entailed any substantial question of law and without framing any substantial question of law, notice of the appeal was ordered to be issued and the Trial Court record requisitioned. 3. On the next date of hearing i.e. 25th April, 2017, the counsel for the respondent/defendant No.1 stated that the respondent/defendant No.3 Smt. Kiran Yadav had expired. The appellant/plaintiff thereafter applied for substitution of heirs of respondent No.3 and which was allowed on 19th December, 2017. The counsel, who had earlier appeared for respondent/defendant No.1, thereafter appeared for the respondents/defendants No.1 to 3 i.e. Rajinder Yadav, Dinesh Yadav and the legal heirs of respondent/defendant No.3. The respondent/defendant No.4 Havaldar Yadav did not appear despite service and was on 22nd August, 2017 proceeded against ex-parte. On 6th September, 2018, though the counsel for the respondents/defendants No.1 to 3 appeared but none appeared for the appellant/plaintiff and the appeal was dismissed for non-prosecution. Subsequently, the counsel for appellant/plaintiff mentioned the matter and though he was heard on whether the appeal entailed any substantial question of law, to decide whether to restore the appeal, but could not satisfy the Court. Now today, an application for restoration of the appeal has been filed. 4. Need to hear the counsel for the respondents/defendants on CM No.41911/2018 for restoration of the appeal is not felt and for the reasons stated, CM No.41911/2018 is allowed. The appeal is restored to its original position and CM No.41911/2018 is disposed of. 5. The counsel for the appellant/plaintiff has been heard to determine whether this second appeal against consistent decisions of the Suit Court and the First Appellate Court entails any substantial question of law, to be entertained. Supreme Court, in Surat Singh Vs. Siri Bhagwan (2018) 4 SCC 562 and Vijay Arjun Bhagat Vs. Nana Laxman Tapkire 2018 SCC OnLine SC 518 has held that notice even of the Regular Second Appeal cannot be issued, without framing substantial question of law. Though the Trial Court record earlier requisitioned in this Court has been returned owing to the dismissal of the appeal for non-prosecution but the counsel for the appellant/plaintiff has been heard with the assistance of copies of the Trial Court record filed along with memorandum of appeal. 6. The appellant/plaintiff sued for recovery of possession and mesne profits, of 125 sq. yds. area of plot of land admeasuring 250 sq. yds. in Khasra No.140/1/2 situated in Gali No.23, Sant Nagar, Bengali Colony, Burari, Delhi, pleading (i) that one Smt. Ganga Dulari was the owner of the said plot of land and died leaving only two daughters, namely Vidhya Devi @ Vidhya Wati and Sundari Devi, as her heirs and each of the said daughters inherited the said property equally i.e. each having 125 sq. yds. of land; (ii) that the appellant/plaintiff is