Yogender Kumar & Anr v. Rajender Kumar & Ors

RAJIV SAHAI ENDLAW, J. SEPTEMBER 12, 2018 bs

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 12th September, 2018. + RSA 212/2016 & CM No.28685/2016 (for stay) YOGENDER KUMAR & ANR ..... Appellants Through: Mr. S.S. Tomar, Adv. Versus RAJENDER KUMAR & ORS ..... Respondents Through: Mr. Somdutt Kaushik and Mr. Avanish Kumar, Advs. for R-1. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 10th March, 2016 in RCA No.02/2015 of the Court of Additional District Judge-2 (North)] in a First Appeal under Section 96 of the CPC preferred by the respondent No.1/plaintiff against the judgment and decree [dated 29th January, 2015 in Suit No.419/2014 Unique ID No.02401C0006251991 of the Court of Civil Judge-06 (Central)] in a suit filed by the respondent No.1/plaintiff. 2. This appeal came up first before this Court on 9th August, 2016, when though notice thereof was ordered to be issued and stay of proceedings before the Suit Court granted, but without expressing any satisfaction that this Regular Second Appeal entails any substantial question of law and, without framing any substantial question of law. Vide subsequent order dated 25th October, 2016, Trial Court record was requisitioned. Only the counsel for the respondent No.1/plaintiff has appeared and none of the respondents No.2 to 6/defendants have appeared. 3. On the last date of hearing i.e. 31st August, 2018, the counsels were partly heard and the remaining hearing adjourned to today, recording the consent of the counsels that on completion of hearing, the appeal can be decided by framing the substantial question of law, if any in the judgment deciding the appeal itself. 4. The counsel for the two appellants/defendants namely Yogender Kumar and Krishan Kumar and the counsel for the respondent No.1/plaintiff have been heard and the records perused. 5. The respondent No.1/plaintiff instituted the suit, from which this Regular Second Appeal arises, for recovery of possession of plot No.47, Village Badli, Delhi and for permanent injunction against the two appellants/defendants and the respondents No.2 to 6/defendants from creating any further charge or encumbrance on the said plot. 6. It was inter alia the case of the respondent No.1/plaintiff in the plaint (i) that the father of the respondent No.1/plaintiff namely Ganga Ram was allotted the aforesaid plot No.47 by the Village Panchayat and a certificate of allotment dated 11th January, 1977 issued in the name of the father of the respondent No.1/plaintiff; (ii) that on demise of the father of the respondent No.1/plaintiff, the respondent No.1/plaintiff, being the only heir, succeeded to the said plot No.47; (iii) that the brother namely Pehlad Singh of the father of the respondent No.1/plaintiff (who was impleaded as defendant No.1 in the suit) was allotted adjoining plot No.46; (iv) that a common boundary wall was constructed around the two plots; (v) that the said Pehlad Singh had however sold both the plots to one Dambar (impleaded as defendant No.2 in the suit); (vi) that the respondent No.1/plaintiff though instituted a suit immediately on learning of the said sale, but Pehlad Singh persuaded the respondent No.1/plaintiff to withdraw the suit, promising that plot No.47 would be gotten released from Dambar; and, (vii) that Pehlad Singh however failed to do so. 7. The two appellants/defendants are the sons of Dambar aforesaid. 8. The Suit Court dismissed the suit of the respondent No.1/plaintiff. 9. However, on First Appeal being preferred by the respondent No.1/plaintiff against the judgment and decree of dismissal of the suit, the First Appellate Court, vide the impugned judgment has set aside the judgment and decree of dismissal of the suit and remanded the suit to the Suit Court for impleading the Gaon Sabha, Gram Pradhan and Block Development Officer and to decide the suit afresh, after recording fresh evidence, to determine whethe