Manjula & Ors v. Kishore Kumar & Anr

RAJIV SAHAI ENDLAW, J. SEPTEMBER 10, 2018 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision:10th September, 2018 + RSA No.323/2015 & CMs No.18444/2015 (for stay) & 18096/2015 (u/O XLI R-27 CPC) MANJULA & ORS ..... Appellants Through: Mr. S.N. Sharma and Mr. Sharvan Dev, Advs. versus KISHORE KUMAR & ANR ..... Respondents Through: Mr. R.S. Kela, Mr. Bharat Gupta and Mr.Sanjeev Bindal, Advs. 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 15th April, 2015 in RCA No.32/08 of the Court of the Additional District Judge-01 (North-East)] allowing the First Appeal under Section 96 of the CPC preferred by the respondents/plaintiffs against the judgment and decree [dated 22nd March, 2007 in Suit No.414/2006 of the Court of Civil Judge, Karkardooma] of dismissal of the suit filed by the two respondents/plaintiffs. Vide the same judgment dated 15th April, 2015, the learned Additional District Judge also dismissed the First Appeal under Section 96 of the CPC preferred by the appellants/defendants impugning the findings of the Suit Court to the extent against the appellants though the suit was dismissed. Consequently, the learned Additional District Judge has passed a decree, in favour of the respondents/plaintiffs and against the appellants/defendants, of recovery of possession of immovable property. 2. This appeal came up first before this Court on 4th September, 2015, when albeit without expressing any satisfaction that the appeal raises any substantial question of law and without framing any substantial question of law, notice thereof was ordered to be issued and the operation of the impugned judgment and decree stayed. The respondent no.1/plaintiff appeared in pursuance to the notice issued of the appeal. Though the respondent no.1/plaintiff had also instituted the suit as attorney of the respondent/plaintiff no.2 Moti Lal, but since in the memo of parties in this appeal the respondent/plaintiff no.2 Moti Lal was not shown as to be served through respondent no.1, the respondent no.1/plaintiff did not enter appearance on behalf of the respondent/plaintiff no.2 Moti Lal. The parties were vide order dated 23rd August, 2016 referred to mediation but which remained unsuccessful. The appeal has thereafter been adjourned from time to time. The appellants have also filed an application under Order XLI Rule 27 of the CPC. In none of the subsequent orders also, no satisfaction with respect to the appeal entailing any substantial question of law has been expressed and no substantial question of law has been framed till now. Supreme Court in Vijay Arjun Bhagat Vs. Nana Laxman Tapkire 2018 SCC OnLine SC 518 and Surat Singh Vs. Siri Bhagwan (2018) 4 SCC 562 held that the procedure in respect of Second Appeal is that the Court, before issuing notice thereof is required to frame substantial question of law and without that the appeal cannot be entertained. 3. As such though the appeal is pending for the last three years, but today the counsels have been heard to determine whether any substantial question of law arises and in the course of the hearing, the Suit Court record and the First Appellate Court record requisitioned in this Court have been examined. 4. The two respondents/plaintiffs instituted the suit, from which this appeal arises, pleading (i) that the respondent/plaintiff no.1 Kishore Kumar, on 17th July, 1984, has purchased property no.B-2/391, Nand Nagari, Delhi – 110 093 from the respondent/plaintiff no.2 Moti Lal by way of irrevocable General Power of Attorney (GPA), Agreement to Sell, Affidavit, Receipt etc. and the respondent/plaintiff no.2 Moti Lal put the respondent/plaintiff no.1 into vacant peaceful physical possession of the property; (ii) that at the time of purchase the property comprised of two room with store on the ground floor and a room, kitchen and bath and open terrace on the first floor; (iii) that Shri Natha Lal, brother of