SUSHILA DEVI Vs. VIJAY KUMAR

JUDGEMENT

(1.) THIS is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of fact recorded by both the Courts below holding that they or their grandson Hitesh Bandhu cannot be permitted to raise construction on the municipal land shown on the site plan with Letters H I J K on the red dotted line. The plan tendered in evidence by the plaintiff-respondents Ex. PW-3/A is also supported by the plan Ex. P-2 presented by the Local Commissioner. Both the plans show the open chowk surrounded by the property of various persons out of which a portion is claimed by the defendant-appellants to be owned by them. It is further appropriate to mention that the plan sanctioned by the Municipal Committee for the construction in favour of grandson of the defendant-appellants Hitesh Bandhu has been cancelled by the Deputy Commission, Mahendergarh at Narnaul and the case was remanded back to the Municipal Committee. On an appeal filed by the plaintiff-respondents, order dated 30.12.1995 has been placed on record as Ex. P-4. Thereafter the Municipal Committee has refused to sanction the plan submitted by Hitesh Bandhu and the order has been placed on record as Ex. D-1. It is in the these circumstances that the Courts below have granted the prayer made by the plaintiff-respondents restraining defendant-appellants from interfering or to raise any construction over the portion marked with Letters ABCDEFGHIJ as the same is an open area and is not owned by the defendant- appellants. Both the Courts below have also discarded the collusive decree suffered by the defendant-appellants in favour of their grandson Hitesh Bandhu claiming that Hitesh Bandhu had become owner of the disputed land. The reason for discarding the collusive decree Ex. D-2 is that the defendant-appellants have failed to produce any evidence that they had a valid title to transfer in favour of their grandson Hitesh Bandhu and that they have rightly suffered a collusive decree Ex. D-2 transferring the title to their grandson. The District Judge has noticed the general tendency of the people to grab the common property after holding that the grandson of the defendant-appellants or the defendant-appellants themselves have not been proved to be the owner. The views of the District Judge are discernible from a perusal of paras 20 and 21 of his judgment which reads as under :-

(2.) HAVING perused the judgments of both the Courts below, I am of the considered view that no interference of this Court under Section 100 of the Code would be warranted because no substantive question of law has been raised for determination. It is trite to observe that in the absence of a question of law, an appeal cannot be admitted under Section 100 of the Code. The question with regard to onus framed in the Memorandum of Appeal would pale into insignificance because it is now well settled that once the parties to a suit have led evidence then the question of onus would become academic. In that regard, reliance could be placed on the judgments of the Supreme Court in the case of Union of India and others v. Sugauli Sugar Works (P) Ltd., AIR 1976 SC 1414; M/s. Cox and Kings (Agents) Ltd. v. Their Workmen and others, AIR 1977 SC 1666 (Para 36); Sushil Kumar v. Rakesh Kumar, 2003(4) RCR(Civil) 753 (SC) : 2003(8) SCC 673 (para 32). Therefore, the appeal cannot be admitted. For the reasons stated above, this appeal fails and the same is dismissed. Appeal dismissed.