Delhi High Court
Hari Mohan And Anr. vs Smt. Maya Devi And Anr. on 26 July, 2011
Equivalent citations: AIR 2012 DELHI 24
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA Nos.82/2010 & 84/2010
% July 26th, 2011
1. RSA No.82/2010
HARI MOHAN AND ANR. ...... Appellants
Through: Mr. S.K. Bhalla, Advocate.
VERSUS
SMT. MAYA DEVI AND ANR. ...... Respondents
Through: Mr. B.K. Verma, Advocate.
2. RSA No.84/2010
HARI MOHAN AND ANR. ...... Appellants
Through: Mr. S.K. Bhalla, Advocate.
VERSUS
SMT. MAYA DEVI AND ANR. ...... Respondents
Through: Mr. B.K. Verma, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
RSA Nos.82/2010 & 84/2010. Page 1 of 5
VALMIKI J. MEHTA, J (ORAL)
1. These two appeals arise from a common judgment of the Appellate Court dated 19.12.2009 between the same parties raising common questions of law and fact and have therefore been heard and are being disposed of by this common judgment.
2. The challenge by means of these Regular Second Appeals is to the impugned judgment dated 19.12.2009 by which the appeal of the respondents herein was accepted and consequently the suit of the plaintiffs/appellants which was decreed by the trial Court was dismissed.
3. The facts of the case are that two suits were filed, one by Smt. Maya Devi (respondent No.1) for permanent injunction to restrain the appellants from interfering with her possession and enjoyment of the suit property comprising of 250 sq. yards situated at house No.G-24, Plot No.9, Laxmi Nagar, Delhi. Another suit was also filed by the present appellants seeking mandatory injunction against the respondents to hand over the possession of the suit property. The suit of the present appellants was decreed by the trial Court and the suit of the present respondents was dismissed. In the appeal, however, by the impugned judgment dated 19.12.2009, the suit of the appellants for mandatory injunction came to be dismissed and the suit of the respondents came to be decreed.
RSA Nos.82/2010 & 84/2010. Page 2 of 5
4. The case of Smt. Maya Devi/respondent No.1 was that she had purchased the suit property from the appellant No.2 Smt. Koyal Devi, who was the wife of the appellant No.1, in the year 1972 by payment of total sale consideration of Rs.8,000/-. It was further the case of Smt. Maya Devi/Respondent No.1 that after having purchased the property she constructed on the property, got electricity and water connections installed and paid all other charges as were necessary with respect to the property. Since the intentions of the appellants became dishonest, the subject suit was filed by Smt. Maya Devi on 12.1.1989 and subsequently to which in April, 1990 the appellant filed the counter suit. The Appellate Court has given the benefit of Section 60 of the Easement Act, 1882 (hereinafter referred to as 'the Act') to the respondents herein by holding that once a licence is created in an immovable property and such licence is coupled with interest and there is permanent construction on the property such licence cannot be terminated. Trial Court invoked Section 60 of the Act inasmuch as there was no title document in favour of the present respondent No.1/Smt. Maya Devi.
5. Learned counsel for the appellants sought to argue that Section 60 of the Act has been wrongly suo moto invoked by the Appellate Court since the respondent No.1 herself denied the applicability of Section 60 of the Act. It has been argued that the Appellate Court has RSA Nos.82/2010 & 84/2010. Page 3 of 5 erred in granting relief to the respondents and dismissing the suit of the appellants.
6. A Regular Second Appeal has to be only entertained if there arises a substantial question of law. Merely because two views are possible and the Appellate Court has taken one possible view, cannot mean that a substantial question of law arises. Appreciation of evidence is within the jurisdiction of the original Court and the Appellate Court, and which appreciation of evidence ought not to be lightly interfered because for maintaining a second appeal there is required not only a question of law but a substantial question of law.
In my opinion, the arguments as raised by the counsel for the appellants are misconceived and no substantial question of law arises inasmuch if really the appellant No.2/Smt. Koyal Devi, wife of appellant No.1, was the owner of the property, then the appellants would not have stood by and allowed the respondents to raise construction on the suit property. It is established on record that the respondent No.1 herein incurred the complete costs for construction on the plot, got electricity and water connections in her name and also has paid all the charges to the local authorities with respect to the subject property. Clearly therefore Section 60 of the Act applies. The argument of the appellants RSA Nos.82/2010 & 84/2010. Page 4 of 5 that the respondents herself denied applicability of Section 60, is without merit inasmuch as there cannot be an estoppel against law. The respondents are always entitled to argue that Section 60 of the Act applies. In my opinion, the Appellate Court is also otherwise correct because as per Section 115 of the Evidence Act, 1872, once a person having a belief that he is the owner of a plot, constructs on a plot and the real owner stands by then such real owner is estopped from claiming any title in the plot inasmuch as by standing by he has given a representation that the person who constructs on the plot had complete entitlement to construct. Further, since the respondent No.1 has admittedly made entire construction on the plot in question, she is definitely the owner of the building which has been constructed on the plot though formally there may not be title papers in the name of the respondents with respect to the plot in question.
7. No substantial question of law therefore arises. Dismissed.
JULY 26, 2011 VALMIKI J. MEHTA, J.
Ne
RSA Nos.82/2010 & 84/2010. Page 5 of 5