RSA No.115/2009 Page 1 of 4 *IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Judgment : 6th of August, 2010 + RSA No.115/2009 & CM No.11989/2009 SHRI JAI CHARAN @ JAI CHAND & ANR. ………..Appellants Through: Mr.Mahmood Hassan, Advocate. Versus SHRI MAHENDER KUMAR AGGARWAL ……….Respondent Through: Ms.Ritu Singh Mann and Mr.Brijesh Sharma, Advocates. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 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 INDERMEET KAUR, J.(Oral) 1. Trial Judge on 10.7.2008 had decreed the suit of the plaintiff/respondent. This was a suit instituted for recovery of possession of a piece of land measuring 5 Biswas (250 sq. yds.) situated in Village Khichripur, Illaqa Shahdara, forming part of Khasra No.76/2 (hereinafter referred to as the „suit property‟) in March 1998. The defendant had illegally occupied the suit property representing herself to be the owner. 2. The main defence of the defendant was on the identity of the suit property; his submission being that the suit property does not fall in Khasra No.76/2 but it falls under Khasra No.76/3. Further that Khasra No.76/2 was fully built up and Khasra No.76/3 is RSA No.115/2009 Page 2 of 4 vacant; defendant claimed ownership of the suit property stating that the same falls in Khasra No.76/3. 3. Trial Judge on the pleadings of the parties has framed six issues. Issue no.2 is relevant for deciding this appeal. It related to the averment as to whether the suit property was comprised in Khasra No.76/2 or not. The demarcation of the suit property had been carried out by the Tehsildar and was proved through the testimony of PW-2 who was the Kanoongo of the area; the report was proved as Ex.P-12 along with the map of property showing the demarcation proceedings. The site plan of the property has been proved as Ex.P-1. Learned counsel for the respondent has placed on record the certified copy of the cross-examination of DW-2 wherein DW-2 has admitted that the site plan Ex. P-1 is correct; it is submitted that this witness was of the appellant/defendant himself. 4. This demarcation report was accepted by Trial Judge which had categorically stated that the suit property falls in Khasra No.76/2 and not in Khasra no.76/3; further the defendant has not produced any document of title. Suit was decreed. 5. The first Appellate Court vide impugned judgment dated 6.4.2009 had endorsed the finding of the Trial Judge. Attention has been drawn to para 6 of the impugned judgment which inter alia reads as follows: “The only controversy in this appeal is that the suit property does not lie in Khasra no.76/2 but it is in Khasra no.76/3. It iis alleged that Ld. Trial Court has committed an error in not appreciating the evidence of parties. It is conceded by Ld. Counsels of parties that there is no other controversy.” 6. It is pointed out by learned counsel for the respondent that RSA No.115/2009 Page 3 of 4 the only dispute raised by the appellant/defendant in the first Appellate Court was about the identity of the suit property as to whether the same falls in Khasra No.76/2 or 76/3 and the first Appellate Court had also endorsed the finding of the first Court. It is submitted that these are factual findings which cannot be gone into by the second Appellate Court. 7. Learned counsel for the appellant has placed reliance upon a judgment of the Supreme Court reported in 2007(5) SCC 669 P.Chandrasekharan Vs. S. Kanakarajan to support his submission that the second Appellate Court while examining a substantial question of law, under the provisions of Section 100 of the CPC, can go into the interpretation of the document which goes to the root of the title of the property and where such a document is misread or mis-appreciated the High Court can interfere in second appeal. 8. This judgment does not come to the aid of the appellant. Learned counsel for the appellant has not been able to point out any discrepancy in the document of title on which attention has been drawn. The sale deed (Ex.P-4 page 133 of the paper book) states that the vender had sold 5 bighas out of Khasra No.76/2 situated in Village Khichripur, Illaqa Shahdara to the vendee namely Shri Ram, father of the plaintiff. The land had been described as Ahata No.181 measuring 250 sq. yards. The site plan (Ex.P-1 page 140 of paper book) relied upon by the plaintiff also shows that the suit property measures 250 sq. yards is contained in Khasra No.76/2 situated in the area of Khichripur, Illaqa Shahdara. The entire Khasra i.e. Khasra No.76/2 had been depicted in the site plan with a coloured portion of 250 sq. yards in the corner i.e. the RSA No.115/2009 Page 4 of 4 suit property. There is no discrepancy in the said two documents i.e. Ex.P-1 and Ex.P-4 as has been urged by the learned counsel for the appellant. Both the documents describe the suit property as contained in Khasra No.76/2 in Village Khichripur, measuring 250 sq. yards. There is no misconstruction or misreading of this document of title which in any manner raises any substantial question of law. They are, in fact, in conformity with one another. 9. No substantial question of law has arisen. The appeal is without any merit. The appeal as also the pending application is dismissed in limine. INDERMEET KAUR, J. AUGUST 06, 2010 nandan