Shishwati v. Ram Gopal and Ors.

(1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whether the judgment should be reported in the Digest ?

JUDGMENT

ARUNA SURESH, J. (Oral)

1. Appellant filed a suit for permanent and mandatory injunction against the respondents for restraining them from raising any construction, or to attempt to fence with barbed wire, or to create any third party interest in the property bearing No. 12/109-E, Geeta Colony, Delhi, claiming herself to be the owner of the same. She also sought mandatory injunction for directing the respondents to 2010:DHC:676 remove the door from the wall of premises No.12/109-C, Geeta Colony, Delhi. The said suit was dismissed by the Trial Court vide its judgment and decree dated 28th August, 2004.

2. Aggrieved by the said judgment and decree, appellant filed regular appeal being RCA No.11/09 before the Additional District Judge, Delhi. The said appeal also met the same fate and was dismissed by the Appellate Court vide his judgment dated 26th October, 2009. Hence, this second appeal.

3. Learned counsel for the appellant has submitted that the court erred in holding that appellant had failed to prove that she was the owner of the property in suit, specially when documents showing her ownership were duly marked on the record. She further submitted that Trial Court also did not take into consideration the site plan, filed by the appellant before the court. According to her, Trial Court went wrong in appreciating the evidence of the parties adduced on record even when respondent did not file any written statement and thus respondents admitted the claim of the appellant as made in the plaint. She has argued that in view of Section 58 of the Evidence Act, non-filing of written statement in itself amounts to admission and since the court failed to appreciate the factum of respondents’ not-filing the written statement, it erred in law by ignoring the provision of Section 58 of the Evidence Act.

4. Section 58 of the Evidence Act speaks of facts admitted need not be proved in evidence. However, proviso to this Section empowers a court to require the facts admitted to be proved otherwise than by such admissions. Since respondents contested the suit but, did not file the written statement, it cannot be said that respondent admitted the claim of appellant. Therefore, Trial Court did not err in law when it ignored the provision of Section 58 of the Evidence Act.

5. It is further submitted by counsel for the appellant that though First Appellate Court did observe that question of title was not in issue and appellant was only required to prove her possession and cause of action, but went wrong in dismissing the appeal on the basis of title itself specially when possession of the appellant in the suit premises was an admitted fact.

6. Substantial questions of law, as suggested by the appellant in the appeal, are as follows:- “i) Whether the Plaintiff was required to prove her case when the Defendant refused to file the written statement which itself amounts to admission in view of Section 58 of the Evidence Act? ii) Whether the Defendants/Respondents are within their right to violate the privacy of the appellant by opening the door in front of her property as the right of privacy is guaranteed by Constitution of India under the Article 21 and 23? iii) Whether the appellant is required to prove the existing structure in absence of any specific denial by the Respondents by not filing any written statement or site plan?”

7. Non-filing of written statement by the respondents only tantamount to non-controverting the pleadings contained in the plaint. However, the appellant was required to prove her case even if there was no written statement on record. The Trial Court had recorded the statement of respondent Ram Gopal under Section 10 of the Code of Civil Procedure. Perusal of the same indicate that nowhere respondent admitted possession of the appellant in the suit premises. Rather, he has stated that suit property belonged to the Government. Criminal litigation had also ensued between the parties with complaints and counter-complaints against each other.

8. To show her possession in the suit property, appellant was required to prove on record as to in what capacity she was in possession of the suit property. The Trial Court noted in the judgment that though appellant filed a copy of the General Power of Attorney and Agreement to Sell, but failed to prove these two documents as she had not thumb marked the agreement to sell and other documents. She could not state the amount of consideration paid by her at the time of purchase of the property. She could not identify signature of Rakesh Kumar on General Power of Attorney. It was under these circumstances that Trial Court held that appellant had failed to prove her bona fide possession in the suit premises. Trial Court also observed that appellant had failed to ascertain the property in dispute. The court also observed that appellant claimed herself to be the owner of 85 sq. yds. but in her statement on oath she claimed the entire property measuring 60 X 12.[5] sq. yds to be in her possession. These findings on fact were affirmed by the First Appellate Court in the impugned judgment.

9. In the second appeal, Court cannot re-assess the evidence of the parties adduced on record. Section 100 CPC only empowers the Second Appellate Court to consider if there was any substantial question of law involved in the appeal. Findings on fact by the courts below are binding on the parties. Therefore, by way of this appeal, appellant cannot invoke jurisdiction of this Court to interfere in the fact findings of the courts below specially when it is not a case of perverse finding of facts.

10. Under these circumstances, none of the substantial questions of law, as suggested, arise in this case. Hence, appeal is dismissed. CM Nos.2191/2010 (u/O 41 R 5 r/w S.151 CPC) & 2192/2010 (u/O 41 R 1 r/w S.151 CPC)

11. Since the appeal has been dismissed, both these applications have become infructuous. Hence, the same are dismissed accordingly.

ARUNA SURESH, J. FEBRUARY 04, 2010 sb