Shakuntla Devi & Ors v. Dev Anand & Anr

RAJIV SAHAI ENDLAW, J.

SEPTEMBER 27, 2018 'pp'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 27th September, 2018 + RSA 342/2015 SHAKUNTLA DEVI & ORS ..... Appellants Through: Mr. Sanjeev Anand and Mr. Varun K. Bala, Advs. Versus DEV ANAND & ANR ..... Respondents Through: R-1 in person. 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 2nd July, 2015 in RCA No.06/12 (Unique ID No.02401C0237222012) of the Court of Additional District Judge (Central)] of dismissal of First Appeal preferred by the three appellants namely (i) Shakuntala Devi, (ii) Mukesh, and (iii) Dinesh against the judgment and decree [dated 25th April, 2012 in Suit No.15/96 of 1987 of the Court of Additional Senior Civil Judge] allowing the suit filed by the respondent no.1/plaintiff for recovery of possession of immovable property and for mesne profits. 2. This appeal came up before this Court first on 16th September, 2015 when notice thereof was ordered to be issued without recording any satisfaction that the same entailed any substantial question of law and without framing any substantial question of law, and status quo with regard to possession of the subject immovable property was ordered to be maintained. The said interim order was confirmed on 6th March, 2017. Vide order dated 20th July, 2016, Trial Court record was requisitioned and Suit court record and the First Appellate Court record has been received. The appeal has since been adjourned from time to time. In none of the subsequent orders also, any satisfaction of the appeal entailing any substantial question of law has been recorded and no substantial question of law has been framed. 3. 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 a Second Appeal cannot be entertained and notice thereof also cannot be issued without the High Court framing a substantial question of law. 4. For the aforesaid reason, though the counsel for the respondents has not appeared inspite of passover, but the counsel for the appellants/defendants has been heard and the records perused. The respondent no.1/plaintiff however appears in person. 5. The respondent no.1/plaintiff instituted the suit, from which the present appeal arises, as far back as on 24th September, 1987, pleading (i) that the respondent no.2/defendant, in or about December, 1980, had represented to the respondent no.1/plaintiff that land measuring 400 sq. yds. forming part of Khasra No.64/4/2 and 5 situated in Village Palam, Abadi Raj Nagar, Palam Colony, New Delhi was owned jointly by the respondent no.2/defendant and his late brother Hari Om Sharma; that Hari Om Sharma had since died leaving the appellants/defendants as his wife and children; that in an oral partition between the respondent no.2/defendant on the one hand and the appellants/defendants on the other hand, all the joint properties were partitioned and in which partition, a piece of land measuring 201 sq. yds. forming part of Khasra No.64/4/2 and 5 in Village Palam, Abadi Raj Nagar, Palam Colony, New Delhi fell to the share of the respondent no.2/defendant and the respondent no.2/defendant was the exclusive owner thereof and desirous to sell the same; (ii) that on the respondent no.1/plaintiff agreeing to purchase the property aforesaid, the respondent no.2/defendant, on 18th December, 1980, executed an Agreement to Sell in favour of the respondent no.1/plaintiff against the receipt of entire sale consideration and delivered possession of the property in part performance of the Agreement to Sell; the respondent no.2/defendant also executed General Power of Attorney, Special Power of Attorney, receipt, affidavit etc. with respect to the said 201 sq. yds. of land in favour of the respondent no.1/plaintiff; (iii) that the respondent no.1/plaintiff constructed a boundary wall around the said land and was in possess