Mohd Ahmed v. CM Prakash Decd Thr Lrs & Ors

1. I have heard the learned counsel for the appellant.

2. The learned counsel for the appellant has not been able to make out any substantial question of law involved in the matter which is a precondition for entertaining a Regular Second Appeal under Section 100 CPC. The only point which has been urged by the learned counsel for the appellant is that the finding returned by the first appellate court holding that the respondent is entitled to a decree 2013:DHC:8597 ofpossession inrespect ofterrace ofshop no.4868 is not supported by evidence on record on account of the fact that the terrace over and above the shop no.4868 was numbered as 4869. In this regard, the learned counsel has drawn the attention of the court to paragraph 6 of the order passed bythe first appellate court on 19.02.2010. A perusal of the sale deed Ex.PWl/2 would reveal that the plaintiff purchased a single storey shop XIV/4868 from Mr.Gurubachan Lai on 05.09.1968. There is a recital in the sale deed which goes unchallenged that Mr.Om Prakash was already in possession of the shop with its roof. It is this highlighted portion contained in the impugned judgment which is stated to be not based on the facts recorded in the recital of the sale deed. The learned counsel for the appellant has taken the court through the sale deed also. Even if it is assumed that this recital is not mentioned in the sale deed, even then itdoes not make any difference. There isno evidence on record to show that the terrace over and above the shop no.4868 was having a different number of 4869. On the contrary, the sale deed in favour ofthe respondent is specifically in respect ofthe shop no.XIV/4868 which is admittedly a single storey shop and there is no evidence to the contrary to show that the terrace was given a different number. In such a circumstance, the person who has sold the shop will have the right overthe terraceup to the sky. In any case, this is a question which has already been adjudicated by the first appellate court and I do not find that this question of fact suffers from any perversity in the light of the evidence produced by the parties and there is no question of law, much less a substantial question of law, arising from the present appeals calling for formulation of the same and hearing of the matter in detail. The appeals arewithout merit andthe same are dismissed.

NOVEMBER 07, 2013 5^ V.K. SHALI, J