Delhi High Court

Ved Prakash Lamba vs Satyapal Lamba on 2 February, 2024

Author:
C. Hari Shankar

Bench:
C.Hari Shankar

$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 9/2017 & CM APPL. 575/2017, CM APPL. 43503/2017,
CM APPL. 63037/2023,

VED PRAKASH LAMBA ..... Appellant

Through: Appellant in person

versus

SATYAPAL LAMBA ..... Respondent

Through: Mr. Harry Chhibber and Mr.
Gaurav Tyagi, Advs. with son of the
respondent in person

CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR

JUDGMENT (ORAL)

% 02.02.2024

1. The appellant Ved Prakash Lamba and the respondent Satyapal
Lamba are brothers. This, therefore, is a plain case of sibling rivalry.

2. This second appeal under
Section 100
of the Code of Civil
Procedure, 1908 (
CPC
) emanates from Suit 146/2010 which was
instituted by the respondent against the appellant. The suit was
decreed by the learned Civil Judge by judgment dated 23 May 2015.

3. The appellant appealed against the said judgment and decree to
the learned Additional District Judge ("the learned ADJ") vide RCA

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10/2015 (
Ved Prakash Labma v. Satyapal Lamba
).

4. The appeal has been dismissed by the impugned judgment dated
24 September 2016. The original defendant is in second appeal before
this Court under
Section 100
of the CPC.

5. A perusal of the orders passed by the learned Civil Judge and
the learned ADJ reveal that the disputes between the parties were
purely disputes of fact. There is no question of law involved therein.

6. It is trite law that pure findings of fact would not merit case for
interference in second appeal under
Section 100
of the CPC, as they
would not result in any substantial question of law, unless the findings
are perverse.

7. There is a wide swathe of authorities on the point, of which two
of the most recent to be found in the judgments of the Supreme Court
in
Chandrabhan v. Saraswati1
and
P Kishore Kumar v. Vitthal K.
Patkar2
.

8. The relevant passages from the said decisions may be
reproduced thus:

From Chandrabhan:

"27. The guidelines to determine what is a substantial question
of law within the meaning of
Section 100
CPC has been laid down

1 2022 SCC OnLine SC 1273
2 (2023) SCC OnLine SC 1483

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by this Court in Sir Chunnilal V. Lal Mehta & Sons v. Century
Spinning and Manufacturing Co. Ltd.3

28.
In Sir Chunilal V. Mehta and Sons, this Court agreed with
and approved a Full Bench judgment of the Madras High Court
in
Rimmalapudi Subba Rao v. Noony Veeraju4
which laid down
the principles for deciding when a question of law becomes a
substantial question of law.

29.
In
Hero Vinoth v. Seshammal5
, this Court followed Sir
Chunilal v. Mehta & Sons and other judgments and summarized
the tests to find out whether a given set of questions of law were
mere questions of law or substantial questions of law.

30. The relevant paragraphs of the judgment of this Court
in Hero Vinoth are set out herein below:

"21. The phrase "substantial question of law", as
occurring in the amended
Section 100
CPC is not defined
in the Code. The word substantial, as qualifying "question
of law", means of having substance, essential, real, of
sound worth, important or considerable. It is to be
understood as something in contradistinction with
technical, of no substance or consequence, or academic
merely. However, it is clear that the legislature has chosen
not to qualify the scope of "substantial question of law" by
suffixing the words "of general importance" as has been
done in many other provisions such as
Section 109
of the
Code or
Article 133(1)(a)
of the Constitution. The
substantial question of law on which a second appeal shall
be heard need not necessarily be a substantial question of
law of general importance.
In
Guran Ditta v. Ram Ditta6
]
the phrase "substantial question of law" as it was
employed in the last clause of the then existing
Section 100

CPC (since omitted by the
Amendment Act, 1973
) came up
for consideration and their Lordships held that it did not
mean a substantial question of general importance but a
substantial question of law which was involved in the case.

In Sir Chunilal case the Constitution Bench expressed
agreement with the following view taken by a Full Bench of
the Madras High Court in
Rimmalapudi Subba
Rao v. Noony Veeraju
:)

3 AIR 1962 SC 1314
4 AIR 1951 Mad 969
5 (2006) 5 SCC 545
6 (1927-28) 55 IA 235 : AIR 1928 PC 172

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"[W]hen a question of law is fairly arguable, where
there is room for difference of opinion on it or
where the Court thought it necessary to deal with
that question at some length and discuss alternative
views, then the question would be a substantial
question of law. On the other hand if the question
was practically covered by the decision of the
highest court or if the general principles to be
applied in determining the question are well settled
and the only question was of applying those
principles to the particular fact of the case it would
not be a substantial question of law."

31. The proper test for determining whether a question of law
raised in the case is substantial would be, whether it is of general
public importance or whether it directly and substantially affects
the rights of the parties and if so, whether it is either an open
question in the sense that it is not finally settled by this Court. If
the question is settled by the highest court or the general principles
to be applied in determining the question are well settled and there
is a mere question of applying those principles or the question
raised is palpably absurd, the question would not be a substantial
question of law.

32. To be 'substantial', a question of law must be debatable,
not previously settled by law of the land or a binding precedent,
and must have a material bearing on the decision of the case, if
answered either way, insofar as the rights of the parties before it
are concerned. To be a question of law "involving in the case"

there must be first, a foundation for it laid in the pleadings and the
question should emerge from the sustainable findings of fact
arrived at by court of facts and it must be necessary to decide that
question of law for a just and proper decision of the case. An
entirely new point raised for the first time before the High Court is
not a question involved in the case unless it goes to the root of the
matter. It will, therefore, depend on the facts and circumstance of
each case whether a question of law is a substantial one and
involved in the case or not, the paramount overall consideration
being the need for striking a judicious balance between the
indispensable obligation to do justice at all stages and impelling
necessity of avoiding prolongation in the life of any lis.
(See
Santosh Hazari v. Purushottam Tiwari7
).

33. The principles relating to
Section 100
of the CPC relevant
for this case may be summarised thus:

7 (2001) 3 SCC 179

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(i) An inference of fact from the recitals or contents of
a document is a question of fact. But the legal effect of the
terms of a document is a question of law. Construction of a
document involving the application of any principle of law,
is also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a
question of law.

(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a mere
question of law. A question of law having a material
bearing on the decision of the case (that is, a question,
answer to which affects the rights of parties to the suit) will
be a substantial question of law, if it is not covered by any
specific provisions of law or settled legal principle
emerging from binding precedents and involves a debatable
legal issue. A substantial question of law will also arise in a
contrary situation, where the legal position is clear, either
on account of express provisions of law or binding
precedents, but the court below has decided the matter,
either ignoring or acting contrary to such legal principle. In
the second type of cases, the substantial question of law
arises not because the law is still debatable, but because the
decision rendered on a material question, violates the
settled position of law.

(iii) The general rule is that the High Court will not
interfere with findings of facts arrived at by the courts
below. But it is not an absolute rule. Some of the well-
recognised exceptions are where (i) the courts below have
ignored material evidence or acted on no evidence; (ii) the
courts have drawn wrong inferences from proved facts by
applying the law erroneously; or (iii) the courts have
wrongly cast the burden of proof. When we refer to
"decision based on no evidence", it not only refers to cases
where there is a total dearth of evidence, but also refers to
any case, where the evidence, taken as a whole, is not
reasonably capable of supporting the finding.

34. In this case, it cannot be said that the First Appellate Court
acted on no evidence. The Respondents in their Second Appeal
before the High Court did not advert to any material evidence that
had been ignored by the First Appellate Court. The Respondents
also could not show that any wrong inference had been drawn by

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the First Appellate Court from proved facts by applying the law
erroneously.

35. In this case, as observed above, evidence had been adduced
on behalf of the Original Plaintiff as well as the Defendants. The
First Appellate Court analysed the evidence carefully and in effect
found that the Trial Court had erred in its analysis of evidence and
given undue importance to discrepancies and inconsistencies,
which were not really material, overlooking the time gap of 34
years that had elapsed since the date of the adoption. There was no
such infirmity in the reasoning of the First Appellate Court which
called for interference.

36. Right of appeal is not automatic. Right of appeal is
conferred by statute. When statute confers a limited right of appeal
restricted only to cases which involve substantial questions of law,
it is not open to this Court to sit in appeal over the factual findings
arrived at by the First Appellate Court."

From P Kishore Kumar

29. The first appellate court having examined the facts in extenso,
the High Court ought not to have interfered with the findings
rendered therein by virtue of being, in second appeal, a court of
law. As was astutely said by this Court in
Gurdev Kaur v. Kaki8
, a
second appellate court is not expected to conduct a "third trial on
facts" or be "one more dice in the gamble." The decision rendered
by the first appellate court, not being in violation of the settled
position of law, ought not to have been interfered with. With
utmost respect to the High Court, we are constrained to observe
that the question framed by it could be regarded as one of law, if it
all, but did not merit the label of a substantial question of law so as
to warrant interference with the first appellate decree under

section 100
of the CPC."

9. The Court is required to be additionally circumspect where
there are concurrent findings of fact by both the courts below.

10. Suit 146/2010, from which these proceedings emanate, was
instituted by the respondent against the appellant.

8 (2007) 1 SCC 546

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11. The litigation pertains to a house situated at J-31, Rajouri
Garden. There is no dispute that the appellant and the respondents are
both residing in the suit property.

12. The plaint instituted by the respondent averred that the
respondent was residing on the ground floor of the suit property and
the appellant was residing on the first floor thereof.

13. The terrace/second floor consisted only of one room, 12' X 12'
in dimension. According to the plaint, this room was in common and
joint use of the appellant and the respondent.

14. It was further averred in the plaint that there were two staircases
leading from the ground floor of the suit property to the first floor and
one staircase leading from first floor of the suit property to the second
floor. Though the appellant and the respondent, according to the
plaint, were using their respective staircases to move from ground
floor to the first floor, it was alleged that the appellant had locked the
staircase which proceeded from the first floor to the second floor as a
result of which the respondent was unable to obtain access to the
second floor and to the room on the terrace situated on the second
floor.

15. In these circumstances, the respondent, in his suit, sought reliefs
of perpetual and permanent injunction, directing the appellant to
remove the lock by which access to the staircase to the second floor

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had been blocked and not to interfere with the enjoyment of the room
on the second floor which was in the joint possession of the appellant
and the respondent.

16. The learned Civil Judge framed the following issues as arising
for consideration in the case:

"1. Whether the plaintiff is entitled to decree of mandatory
injunction, as prayed for? OPP

2. Whether the plaintiff is entitled to decree of permanent
prohibitory injunction, as prayed for? OPP

3. Relief."

17. Apropos Issue 1, the learned Civil Judge notes that, in the
written statement filed by the appellant/defendant, it was admitted that
the suit property was in their joint ownership. It is further observed in
the judgment of the learned Civil Judge that though, in the written
statement filed by the defendant, it was sought to be averred that there
was only one staircase leading from the ground floor to the second
floor of the suit property, the inspection report of a learned Local
Commissioner, who was appointed to visit the property, revealed that
there were, in fact, two staircases leading from ground floor to the first
floor as had been averred by the respondent in his plaint.

18. It was further observed that the articles of the appellant and the
respondent were both found in the room on the terrace of the suit
property, thereby belying the contention of the appellant that the
appellant was in exclusive possession of the room on the terrace.

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19. In these circumstances, the learned Civil Judge held that the
appellant could not be permitted to block access to the terrace by
locking the staircase which led from the first floor to the terrace.
Equally, as the property was admittedly in joint possession of the
appellant and the respondent, and the goods of both appellant and
respondent were found in the room on the terrace, the learned Civil
Judge held that the respondent was entitled to a decree of permanent
injunction against the appellant prohibiting him from interfering with
the respondent's enjoyment of the room on the terrace.

20. As a result, the learned Civil Judge directed the appellant to
remove the lock on the staircase leading to the terrace and also
injuncted the appellant permanently from interfering with the
enjoyment, by the respondent, of the room on the terrace.

21. In first appeal, the learned ADJ has found no cause to interfere
with the decision of the learned Civil Judge. He has noted the
contention of the appellant that he was in exclusive possession of the
room on the terrace and that, if the respondents were to be allowed
access to the said room, it would hinder the safety and security of the
appellant.

22. The learned ADJ has held that, as the suit property was
admittedly in joint ownership and possession of the appellant and the
respondent, and as there had been no partition or division of the suit
property, the respondent had equal rights to the room on the terrace.
As such, the appellant could not block access, by the respondent, to

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the room on the terrace. Inasmuch as the appellant had not suggested
any alternative way for the respondent to reach the terrace, the learned
ADJ found no infirmity in the decision of the learned Civil Judge
directing the appellant to open access to the staircase leading from the
first floor to the terrace and not to interfere with the enjoyment of the
room on the terrace by the respondent.

23. Before me, the appellant has chosen to argue his case in person.
He only read ground D in the appeal which is as under:

"D. That the Ld. Lower Appellate Court has overlooked the
observation made by Hon'ble Mr. Justice T.V.R. Tatachari in the
case of Prithi Singh Versus Bachitar Singh in R.S.A. No.91 of 67
(supra)wherein it was observed in paragraph 5of the judgment in
the last lines in the following terms:-

"It is now well settled that every co-owner has a right to use
the joint property in a husband like manner not inconsistent
with similar rights of other co owners. It is also well settled
that where a co owner is in possession of separate parcels
under an arrangement consented to by the other co-owners,
it is not open to anyone to disturb the arrangement without
the consent of others except by filing a suit for partition."

In the present case also admittedly there is one stair case from first
floor to the terrace which is in possession of the appellant and as
such, the terrace being the integral part of the first floor and is in
actual and physical possession of the appellant which is clear even
from the evidence produced by the parties and the possession of the
same is with the appellant and the respondent in the garb of the
present suit wants to disturb the peaceful possession of the
appellant in respect of the terrace over the first floor of the said
property. However it is further submitted that the respondent in his
statement recorded, has also stated that he could not go to the
terrace unless and appellant open the main entry door of the first
floor which clearly shows that the terrace is in actual and physical
possession of the appellant and the Ld. Trial Court as well as the
Appellate Court has completely ignored this aspect of this case and
as such the impugned judgment and decree of the Ld. Lower
Appellate Court is bad in the eyes of law which has resulted into
grave miscarriage of justice to the appellant in view of the fact that
in the garb of the injunction, the respondent is seeking the decree

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for partition and possession which is not permissible under the
law."

24. To a query from the Court as to the evidence to indicate that the
appellant was in exclusive possession of the room on the terrace, no
convincing answer is forthcoming. There are concurrent findings of
fact that the room on the terrace is in joint possession of the appellant
and the respondent. The appellant, in his written statement, has
admitted the fact that the suit property was jointly owned by the
appellant and the respondent. It is also an admitted position that there
has never been any partition or division of the suit property. Even on
this sole ground, the respondent would be entitled to enjoyment of the
room on the terrace as much as the appellant.

25. That apart, the learned Civil Judge has also observed that the
articles of the appellant and the respondent were both found in the
room on the terrace. This is a pure finding of fact, which cannot invite
interference in second appeal by this Court. If the articles of both
appellant and respondent were found in the room on the terrace, it
cannot lie in the mouth of the appellant that he was in exclusive
physical possession of said room. No infirmity, whatsoever, therefore
can be said to exist in the direction of the learned Civil Judge to the
appellant to open access of the staircase leading to the terrace and not
to interfere with the joint enjoyment of the room on the terrace, by the
respondent.

26. To my mind, this is purely an ego driven dispute. It is a fight
amongst siblings. This is not a litigation which actually deserved to

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have travelled upto this Court and occupied valuable court time.

27. Ideally, this second appeal ought to have invited costs on the
appellant.

28. Nonetheless, as the appellant is advanced in years and has
argued the matter himself, I refrain from doing so.

29. After the judgment was completely dictated, the appellant
sought to submit that the finding that the suit property was in joint
ownership was incorrect and that there was no such admission.

30. I have drawn the attention of the appellant to paras (C) and (K)
of the facts stated in the written statement which read thus:

"C. That Late Shri Inderjeet died on 21.08.1990 bequeathing
the property under contention to his wife Late Smt. Leelawati (i.e.
mother of plaintiff and Defendant) vide Registered will dated
14.7.71. That Late Smt Leela Devi also demised on 21.11.1999
leaving behind a Registered will dated 25.07.1991 wherein she had
bequeathed the property under contention equally to both her sons
who are the Plaintiff and Defendant therein.

K. The plaintiff does not allow access to the Defendant in the
area under the occupation of the Plaintiff though the property is
still undivided. The Defendant has asked the Plaintiff to divide the
property equally between themselves but Plaintiff has deliberately
refrained from doing so as the Plaintiff has some nefarious design."

31. The findings of the learned Civil Judge that, in the written
statement filed by the appellant, joint ownership of the suit property
stood admitted, therefore, suffers from no infirmity.

32. In order to avoid further litigation, it is clarified that the

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appellant shall allow unhindered access to the terrace of the suit
property via the staircase which leads from the first floor to the second
floor and the respondent shall be entitled to equal ownership and
enjoyment of the room on the second floor/terrace along with the
appellant.

33. The appeal is accordingly, dismissed.

C. HARI SHANKAR, J.

FEBRUARY 2, 2024
dsn

Click here to check corrigendum, if any

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