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Amrit Lal Alias Khacheru Vs. Hukam Chand - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 16 of 1971
Judge
Reported in1972RLR21
ActsCode of Civil Procedure (CPC), 1908 - Sections 96
AppellantAmrit Lal Alias Khacheru
RespondentHukam Chand
Advocates: Tej Singh Vohra and; Hans Raj Khanna, Advs
Cases ReferredWadhwan Singh and Aw. v. Sunder Singh and
Excerpt:
in an instant the respondent instituted a suit claiming a mandatory injunction against the appellant to remove tea stall and shed and it was decreed - an appeal was made to the additional senior subordinate judge against the decree and it was dismissed on the ground that the appellants counsel was careless and negligent in drafting grounds of appeal - subsequently a second appeal was made and there was complete denial of justice at hearing of appeal - it was held that the order of the additional senior subordinate judge was unwarranted and was to be set aside - the case was remanded back for redecision - .....respondent was decreed by the trial court and the dependent thereupon appealed to the additional senior subordinate judge, delhi. among the issues framed by the trial court were the following :- whether the defendant has become owner/bhumidar with respect to the land in dispute under the delhi land reforms act the other issues are not material at this stage. (2) at the hearing of the appeal before the additional senior subordinate judge, it was pointed out by the counsel for the respondent that the appellant there had not challenged the correctness of the findings of the learned subordi- nate judge on any other issue except issue no. 4, and thereforee, the decision of the learned subordinate judge on all the other issues should be accepted as correct and, thereforee, incapable of.....
Judgment:

D.K. Kapur, J.

(1) This Regular Second Appeal involves a very short point. The respondent had instituted a suit claiming a mandatory injunction against the appellant to remove the tea stall and sheds alleged to have been erected on the said respondent's land. The suit brought by the respondent was decreed by the trial court and the dependent thereupon appealed to the Additional Senior Subordinate Judge, Delhi. Among the issues framed by the trial court were the following :- Whether the defendant has become owner/Bhumidar with respect to the land in dispute under the Delhi Land Reforms Act The other issues are not material at this stage.

(2) At the hearing of the appeal before the Additional Senior Subordinate Judge, it was pointed out by the counsel for the respondent that the appellant there had not challenged the correctness of the findings of the learned Subordi- nate Judge on any other issue except Issue No. 4, and thereforee, the decision of the learned Subordinate Judge on all the other issues should be accepted as correct and, thereforee, incapable of challenge in appeal. The learned Additional Senior Subordinate Judge followed Wadhwan Singh and Aw. v. Sunder Singh and others A.I.R. 1922, LAH, and came to the conclusion that the only issue capable of challenge was issue No.4 and even on that Issue the finding that the defendant was a trespasser in respect of the tea stall barred the appellant agitating that he was a Bhuinidar or owner of the land in dispute. Accordingly, the appeal was dismissed chiefly on the ground that the appellant's counsel was careless and negligent in drafting the grounds of appeal.

(3) The defendant has now come to this Court in second appeal and the correctness of the decision of the Additional Senior Subordinate Judge is impugned on the ground that there has been a mis-reading of the memorandum of appeal. I have been referred to the memorandum of appeal and find that the contentions of the appellant are entirely correct. In the first ground, the appellant had stated that the judgment was against facts and law; in the second ground, that the Judgment was arbitrary, illegal, ultra virus and contrary to the facts on record; in the third ground, that the learned lower court had given more weight to the plaintiff's evidence and ignored the evidence of the defendant; in the fourth ground, the decision on issue No. 4 was challenged, in the fifth ground, the decision on issue No. 1 was challenged; in the sixth ground, it was stated that the land was agricultural land and governed by the Delhi Land Reforms Act; in the seventh ground, it was stated that the appellant had been in possession for more than three years and thus could not be evicted; in the eighth ground, it was contended that the appellant had never been a licensee and the trial court had based its judgment on surmises in this behalf; in the ninth ground, it was stated that the trial court had no authority to decide that the plaintiff was a Bhumidar and this was a matter only within the juris- diction of the Revenue Court and in the tenth ground, it was stated that the learned lower court's judgment was arbitrary, illegal and partial. It is, thereforee, clear on a reading of these grounds that the appeal was not confined to the decision on Issue No. 4 alone.

(4) The judgment which has been relied upon i.e., Wadhwan Singh and another V. Sunder Singh and others, A.T.R. 1921 Lah182. was a completely different type of case where a finding of fact had been arrived at by the trial court holding that Sunder Singh had obtained the house in dispute from Budh Singh in exchange. This finding was accepted in the grounds of appeal before the lower appellate Court and this was held to be sufficient to disentitle the lower appellate court from reversing the finding. I am unable to find from the circumstances of (he present case that any finding has been accepted by the appellant in his grounds of appeal. In fact every single one of the ten grounds of appeal attacks the conclusions arrived at by the trial court.

(5) I may mention that in deciding the suit the subordinate Judge had held that the defendant was a licensee and the license had been revoked, and hence a mandatory injunction was granted to the plaintiff directing the defendant to remove the tea stall and sheds. In the appeal before the lower appellate court, the finding that the defendant was a licensee was expressly challenged in ground No.8. In ground No. 7 the appellant contended that he could not be evicted after three years of occupation. The reason for this contention appears to be ground No. 6, namely that the Delhi Land Reforms Act applied to this case and the land was agricultural land from which a trespasser could only be evicted within the period prescribed by that Act. I am expressing no view on the correctness or otherwise of the grounds of appeal filed by the appellant before the lower appellate court, but I am unable to find anything to support the view of the court below that the appeal was restricted to a challenge to the decision on Issue No. 4.

(6) In my view there has been a complete dential of justice at the hearing of the appeal and the Judgment of the Additional Senior Subordinate Judge is entirely unwarranted and has to be set aside. I, thereforee, set aside the decision under appeal and remand the case back for re-decision. It will be preferable if the appeal is heard by the Senior Subordinate Judge himself. I have, thereforee, directed the parties to appear before the Senior Subordinate Judge on 5th October, 1971, so that the appeal can be re-heard and decided on merits.


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