Smash! Chauhan v. Satender & 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 thejudgment should be reported in the Digest? I U D G M E N T ARUNA SURESH. I.(Oral)

1. Appellant filed a suit for permanent injunction against the respondents claiming herself to be the owner in possession of property bearing No.99, out RSA 106/2008 Page lof[6] 2009:DHC:9092 of Khasra No.35/1, Karawal Nagar, near Abadi B Block, Shiv Vlhar, by virtue of Agreement to Sell, General Power of Attorney, Will, Receipt executed by the owner of the property before the Sub that she had built a boundary wall of aboutfour feet height at her own cost and since then is in possession of the suit property. She was threatened dispossession by the respondents. Therefore she filed a suit for injunction seeking restraint orders to be issued against the respondents from interfering in her use and occupation of and her rights over the suit property.

2. Respondents refuted the claim of the appellant before the trial court. The trial court, after assessment of the evidence of the parties adduced on the record on various issues framed by it, was pleased to dismiss the suit of the appellant vide its detailed judgment and decree dated 30.3.2005.

3. Dissatisfied with the judgment and decree of the trial court, appellant preferred first appeal before the learned Additional District judge Delhi being RSA 106/2008 Page 2of[6] RCA No.53/2007. The appellate court, reassessed the evidence of the parties adduced on the record and took into consideration the observations made by the trial court, gave concurrent finding and dismissed the appeal of the appellant.

4. Hence,this appeal under Section 100 of the CPC.

5. The trial court while dismissing the suit of the appellant made following relevant observations which I also found reproduced in the impugned order. The relevant observations are reproduced hereunder: "After going through the entire evidence of the plaintiff I find that PW- 1 and PW-2 and PW-3 are not consistent in proving of case of plaintiff. PW-1 stated that titled documents were executed at Shahdara Court whereas PW-2 deposed that documents were executed at Lai Quarter Krishna Nagar. Deposition of PW-2 is very much contrary to PW-1 in regard of place of execution of the documents and further PW-2 could not tell the name of witness of their title document which also creates suspicion over the documents and PW-1 does not know whether Sub of execution of the documents. Moreover, PW^l does not know whether power of attorney was executed on 18/1/85 or not in favour RSA106/2008 Page 3of[6] of the plaintiff. Moreover, PW-1 does not know who resides in plot no.99 whereas plaintiff claimed that she is in possession of the suit property. PW-2 also does not support the case of plaintiff as he stated that he does not remember whether Shashi Chauhan and Bhavar Singh were present when he executed the attorney of documents in favour of Shashi Chauhan and further he does not know the name of witnesses who were present at the time of execution of the documents and DW-3 has also not shown any documents in regard of his plot which may show that his plot no. is 100. Hence, testimony of PW-3 also does not assist more and he also ^ does not know who had constructed the boundary wall of the suit property. After going through the entire evidence of the plaintiff, I am of the view that plaintiff has failed to show that she hold any plot no.99 in Shiv Vihar, Karawal Nagar, Delhi. PW-2 and PW-3 did not file any documents which may show that PW-2 has purchased the suit property from Subhash Chand and Subhash Chand purchased from whom, and plaintiff has also not called to the original colonizer who are Mr. Habib and Mr. Daulat Ram for proving of her case. Hence, I am of the considered view that suit property could not be ascertained from the entire evidence of both parties as well as Local Commissioner's report. Hence, it is not possible to pass an order for permanent injunction on a suit property which is not a specified area. Hence, this issue is decided against the plaintiff and in favour of the defendants." RSA 106/2008

6. Thus, it is clear that the suit of the appellant was dismissed after appreciation of evidence of the parties, oral as well as documentary,and it was fact finding of the court below and affirmed by the appellate court that appellant had failed to prove her ownership or her rights in plot No.99.

7. Second appeal would lie only if substantial question of law is required to be formulated and adjudicated upon. In para 12 of the appeal, appellant has framed substantial questions of law. However, perusal of the same indicate that by way of these questions, appellant has only challenged the fact findings of the courts below. None of these questions suggest that the trial court or the appellate court erred in law while dismissing the suit and the appeal.

8. In fact no question of law can be formulated in this appeal. This Court, while sitting in second appeal, cannot interfere in the fact finding of the trial court as well as ofthe first appellate court. RSA 106/2008 ^,/•

9. Hence, appeal being without any merits Is hereby dismissed. August 12,2009 jk

JUDGE RSA 106/2008 6of[6] w