# Suresh Khiyani v. Jassi Apartment Welfare Society

- **Citation:** (2020) 8 ILRA 302
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-12
- **Case number:** Second Appeal No. 156 of 2020
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-khiyani-v-jassi-apartment-welfare-society-46041
- **Pages:** 9

## Headnote

(A) Civil Law - Code of Civil Procedure
,1908 - Section 100 CPC - Order 7 Rule 11
CPC - rejection of plaint - Specific Relief Act,
1963 - Section 41 - Injunction when refused -
Order 41 Rule 31 CPC - the U.P. Apartment
(Promotion of Constructions, Ownership and
Maintenance) Act, 2012 - Section 25 (3) and
(4) - RERA, 2016 - Section 43 - plaintiff is
'dominus litis' - it is his discretion to add a
party to implead any person - suit for
injunction - maintainable against the person -
who has raised illegal construction or has
shown to have done some unauthorized act
or has encroached the open area - substantial
question of law - if the question is settled
then it would not be a substantial question of
law - merely because in the substantial
questions of law so framed in the memo of
appeal
involving
interpretation
of
any
particular provision of the law by itself could
not be substantial questions of law. (Para -
12,16,21,22)

It is a civil suit for injunction regarding
encroachment on common open area -
Plaintiff-respondent filed a suit for permanent
prohibitory injunction as well as mandatory
injunction in respect of a common area shown
as parking place by dotted line in the plaint
map and that the defendant be restrained
from encroaching upon any other common
area of the apartment campus. (Para -
3,8,13,20)

HELD:- No substantial question of law is
involved in the present appeal, which requires
any interpretation by this Court in view of the law
laid down by Hon'ble Apex Court in Sir Chunilal
Vs Mehta and sons Ltd (supra) and the
questions framed in the memo of appeal, even if
are treated to be questions of law, they are not
open to interpretation.(Para - 23)

Second Appeal dismissed. (E-7)

List of Cases cited:-

## Text

302 INDIAN LAW REPORTS ALLAHABAD SERIES
judugment given by a Full Bench of this
Court in the case of Smt. Kiran Bala
Srivastava Vs. Jai Prakash Srivastava,
2005(23) LCD 1 as the same does not
relate to the controversy relating to Order
7 Rule 11 read with section 151 C.P.C.

32. For the foregoing reasons, the
first appeal lacks merit and is dismissed.
----------
(2020)08ILR A302
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.06.2020

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Second Appeal No. 156 of 2020

Suresh Khiyani ...Appellant
Versus
Jassi Apartment Welfare Society
 ...Respondent

Counsel for the Appellant:
Sri Gulrez Khan, Sri Adil Jamal

Counsel for the Respondent:
Sri Ashish Kumar Srivatava

(A) Civil Law - Code of Civil Procedure
,1908 - Section 100 CPC - Order 7 Rule 11
CPC - rejection of plaint - Specific Relief Act,
1963 - Section 41 - Injunction when refused -
Order 41 Rule 31 CPC - the U.P. Apartment
(Promotion of Constructions, Ownership and
Maintenance) Act, 2012 - Section 25 (3) and
(4) - RERA, 2016 - Section 43 - plaintiff is
'dominus litis' - it is his discretion to add a
party to implead any person - suit for
injunction - maintainable against the person -
who has raised illegal construction or has
shown to have done some unauthorized act
or has encroached the open area - substantial
question of law - if the question is settled
then it would not be a substantial question of
law - merely because in the substantial
questions of law so framed in the memo of
appeal
involving
interpretation
of
any
particular provision of the law by itself could
not be substantial questions of law. (Para -
12,16,21,22)

It is a civil suit for injunction regarding
encroachment on common open area -
Plaintiff-respondent filed a suit for permanent
prohibitory injunction as well as mandatory
injunction in respect of a common area shown
as parking place by dotted line in the plaint
map and that the defendant be restrained
from encroaching upon any other common
area of the apartment campus. (Para -
3,8,13,20)

HELD:- No substantial question of law is
involved in the present appeal, which requires
any interpretation by this Court in view of the law
laid down by Hon'ble Apex Court in Sir Chunilal
Vs Mehta and sons Ltd (supra) and the
questions framed in the memo of appeal, even if
are treated to be questions of law, they are not
open to interpretation.(Para - 23)

Second Appeal dismissed. (E-7)

List of Cases cited:-

1.
Mumbai International Airport
Private
Limited Vs Regency Convention Centre &
Hotels Private Limited and others, (2010) 7
SCC 417

2. Gurmit Singh Bhatia Vs Kiran Kant
Robinson & ors., 2019 AIR (SC) 3577

3. Kasturi Vs Uyyamperumal, (2005) 6 SCC
733

4. Gurmit Singh Bhatia Vs Kiran Kant
Robinson & ors., 2020 (1) ARC 381.

5. Sir Chunilal Vs Mehta & sons Ltd Vs
Century Spining & Manufacturing Co. Ltd, AIR
1962 SC 1314

6. Harihar Tiwari Vs Kshetriya Sri Gandhi
Ashram (Second Appeal No. 94 of 2020)

(Delivered by Hon'ble Vivek Kumar Birla, J.)
8 All. Suresh Khiyani Vs. Jassi Apartment Welfare Society
303

1. Heard learned counsel for the
appellant
and
Sri
Ashish
Kumar
Srivastava, learned counsel for the
respondent.

2. Present appeal has been filed for
setting aside the judgment and decree
dated 4.11.2019 passed by Additional
District Judge, Court No. 23, Kanpur
Nagar in Civil Appeal No. 33 of 2019
(Jassi Apartments Welfare Society vs.
Suresh Khiyani) arising out of O.S.
No.1079 of 2011 (Jassi Apartments
Welfare Society vs. Suresh Khiyani),
which was dismissed by the trial court
vide judgment dated 11.02.2019.

3. The plaintiff-respondent filed a
suit for permanent prohibitory injunction
as well as mandatory injunction for
removal of the constructions raised
during pendency of the suit. The suit was
filed on the ground that Flat No. 102 was
purchased by the defendant alongwith
common space, which was encroached
upon by him alongwith his wife during
pendency of the suit on 25.1.2014 and
the open common parking area was
surrounded by a wall for personal use
and illegally encroached upon by his wife
Smt. Arti Khiyani and his son Rishi
Khiyani. The suit was contested by the
defendant
and
denying
the
plaint
allegations it was pointed out that Flat
No. 102 was purchased in the name of
Smt. Arti Khiyani through registered sale
deed dated 9.12.2010 and as such she is a
necessary party to the suit and therefore,
the suit is bad for non-joinder of parties.
It was alleged that the area in dispute is
not a common passage and the same is
under the ownership of Smt. Arti
Khiyani. The same is not for common
use of the residents. The suit was
dismissed by the trial court vide
judgment dated 11.2.2019 holding that it
is not proved from the documentary
evidence that it was a common parking
place. It was further found that PW-1 and
PW-2 through their oral evidence though
supported the plaint case, however, their
statement does not inspire confidence
and on this ground the issue no. 1 as to
whether the plaintiff is entitled for
mandatory
injunction
was
decided
against the plaintiff and ultimately the
suit was also dismissed. Issue no. 4 as to
whether the court has jurisdiction to hear
the suit; issue no. 5 as to whether the suit
is barred by Order 7 Rule 11 CPC; and
issue no. 6 as to whether the suit is barred
by Section 41 of the Specific Relief Act,
1963
were
decided
against
the
respondents.

4. The appeal filed by the plaintiff
was allowed by the lower appellate court.
Two points for determination as per
Order 41 Rule 31 CPC were framed by
the lower appellate court (1) whether the
land in front of Flat No. 102 is a common
place open for use of all the flat owners
of Jassi Apartment? and (2) whether the
suit is barred by any legal infirmity?
While
deciding
first
point
of
determination as to whether the space in
front of Flat No. 102 (belonging to the
defendant) is a common place open for
use of flat owners of Jassi Apartments,
upon consideration of the sale deed
(Paper No. 20-Ga) it was found that the
constructed area of 37.16 sq. mts., which
consist of 1 room 1 hall, latrine,
bathroom, kitchen was sold to the
defendant. An undivided share in the
land measuring 24 sq. mts. together
parking space was also mentioned in the
sale deed and the map. Thus, it was
found that the undivided share for
common use has not been sold. In the
304 INDIAN LAW REPORTS ALLAHABAD SERIES
building there are 12 flats. It was
admitted by the PW-1 that the outer wall
of the building was demolished by the
Nagar Nigam and he again raised the
wall allegedly on the oral instructions of
the Society. He stated that some wall was
existing but he had raised the wall in his
own area. Thus, points of determination
no. 1 was decided against the defendant
and in favour of the plaintiff. Insofar as
second points for determination as to
whether the suit suffers from any legal
infirmity it was also noticed that Paper
No. 35-Ga is the registration certificate
of the society and it was found that
although a society was registered during
pendency of the suit, however, the suit
for injunction can be filed against the
person against whom cause of action is
existing and therefore, there is no misjoinder or non-joinder of the parties and
the suit does not suffer from any legal
infirmity.

5. Challenging the same learned
counsel
for
the
appellant-defendant
submitted
that
the
suit
was
not
cognizable by the civil court in absence
of written complaint to the Board and
prior
permission
of
the
competent
authority in view of Section 25 (3) and
(4) of the U.P. Apartment (Promotion of
Constructions,
Ownership
and
Maintenance) Act, 2012; suit filed by the
unregistered
society
was
not
maintainable in view of Section 6 of the
Societies Registration Act, 1980; after
commencement of the Real Estate
(Regulation and Development) Act, 2016
(hereinafter referred to as 'RERA') and in
view of Section 43 of the Act of 2016
civil appeal shall not be cognizable by
the civil court; the property / place in
dispute is in front of Flat No. 102, which
belongs to Smt. Arti Khiyani, who has
not been impleaded in the suit and thus,
the same is bad for non-joinder of
necessary parties; and the findings
recorded by the lower appellate court are
perverse in nature and the same is liable
to be set aside. Learned counsel for the
appellant has also drawn attention to
substantial questions of law framed in the
memo of appeal. The same are quoted as
under:-

"(i)
Whether
the
suit
plaintiff/respondent was cognizable by
civil court in absence of any written
complaint to the board and without prior
permission of the Competent Authority
in view section 25(3) & (4) of the U.P.
Apartment (Promotion of Construction,
Ownership & Maintenance) Act, 2010?

(ii) Whether the suit on behalf
of unregistered society was maintainable
in view of section 6 of the Society
Registration Act, 1980?

(iii) Whether the Civil Appeal
pending before the Civil Court after
commencement
of
Real
Estate
(Regulation and Development) Act, 2016
was cognizable by the Appellate Tribunal
in view of section 43 of the Act 2016 and
judgment of Appellate court is without
jurisdiction?

(iv) Whether the suit of the
plaintiff was liable to be dismissed on the
ground of non joinder of necessary party
Smt. Arti Khiyani who is the owner of
Flat No.102?

(v) Whether the documents
relied upon by the appellate court were
admissible in evidence and conclusive to
prove that the disputed place/property is
reserved for common and parking area?

(vi)
Whether
Pw-1
could
depose on behalf of Secretary of alleged
society in the absence of any registered
power of attorney?
8 All. Suresh Khiyani Vs. Jassi Apartment Welfare Society
305

(vii) Whether the finding of the
appellate court is based on surmises and
conjectures?"

6. Per contra, learned counsel for
the respondent has submitted that the
grievance was against the defendant, who
has encroached the open common area
and as such the suit was not bad for nonjoinder of necessary parties even if the
wife of the defendant was the owner of
Flat No. 102; provisions of the Acts
being relied on by learned counsel for the
appellant, are not applicable in the
present
case;
the
society
was
undisputedly registered; further, in a suit
for injunction an aggrieved person can
file a suit against another person and
therefore,
the
suit
was
perfectly
maintainable and at the time of filing of
the suit even if the society is not
registered and was registered during
pendency of the suit the relief of
injunction cannot be refused to the
plaintiff on this ground alone; there is no
perversity in the findings recorded by the
lower appellate court and findings are
based on correct appreciation of the
documentary evidence on record.

7.

I
have
considered
the
submissions and have perused the record.

8. On perusal of record I find that
the suit has been filed in respect of a
common area shown as parking place by
dotted line in the plaint map and that the
defendant be restrained from encroaching
upon any other common area of the
apartment campus. The suit was filed in
November, 2011. During pendency of the
suit this area was encroached upon by
raising a permanent wall on 25.1.2014
regarding which even a complaint to the
police was also made and therefore, the
relief clause was amended and a relief
was added by seeking relief in the nature
of
mandatory
injunction
regarding
removal of the wall constructed during
pendency of the suit.

9. Before proceeding further it
would be necessary to note the relevant
contents of the sale deed dated 10.9.2004
of Flat No. 102 executed in favour of
Smt. Arti Khiyani w/o defendant no. 1.
Relevant extract of the sale deed is
quoted as under:-

".....

AND
WHEREAS
Smt.
Narinder Kaur W/o Balbir Singh and
Jasvinder Singh S/o Balbir Singh as a
land
owner
and
Trimurti
Builders
through its proprietor Rajendra Kumar
Agarwal S/o lat Devi Dayal Agarwal as a
builder jointly sold and transferred Flat
No. 192 on Ground Floor having covered
area admeasuring 37.16 Sq. constructed
at freehold plot No. 179 Block R.N.
Ratan Lal Nagar Kanpur Nagar known as
'Jassi Apartment' alongwith undivided
share in the land admeasuring 24 Sq.
Meters together with parking space on
ground floor of the premises alongwith
common use of entire facilities and
amenities provided in the Apartment by
virtue of registered sale deed dated
9.0.2004 ........

.....

1. That in pursuance of the
agreement and in consideration of Rs.
7,25,000/- (Seven Lacs twenty five
thousand only) paid by the Vendee to the
Vendor, as per details given at the foot of
this Sale Deed, the receipt of which the
Vendor hereby acknowledge and confirm
before
Sub-Registrar,
Kanpur.
The
Vendor as full and absolute owner and in
full possession of his senses, hereby
306 INDIAN LAW REPORTS ALLAHABAD SERIES
transfer, conveys and sell to the Vendee
by way of absolute sale of Flat No. 102
on Ground Floor having covered area
admeasuring
37.16
Sq.
Meters
constructed at freehold plot No. 179
Block R.N. Ratan Lal Nagar Kanpur
Nagar
known
as
'Jassi
Apartment'
alongwith undivided share in the land
admeasuring 24 Sq. Meters together with
parking space on ground florr of the
premises alongwith common use of
entire facilities and amenities provided in
the complex fully detailed and bounded
given at the top of this Sale Deed and
more fully delineated and shown in the
map annexed herewith, together with
absolute use of common areas and
facilities as the foundations, columns,
girders, beams, supports, main walls,
corridors, lobbies, stairs - stairways and
entrance to an exit from the building
constructed on the said premises and
intended for common use and installation
of common services such as power, light,
water, sewerage etc., water reservoir, lift
pump, motor, pipes, ducts and all
apparatus and installation in the said
premises existing for common use and
the passage etc. shall also be in common
use of the flat owners in the premises
belonging or in any wise appertaining to
or usually held or enjoyed therewith or
reported to belong to the flat hereby
demised and all the estate, rights, title
and interest whatsoever of the Vendor in
the said flat and free from all charges and
encumbrances TO HOLD the same
UNTO and to the use of the Vendee
forever and as absolute owner thereof
without let or hindrance.

2. That the Vendor has on this
day handed over the vacant and physical
possession of the said flat to the Vendee.
Now the Vendee is full and absolute
owner of the said flat with all rights, title
absolute and perfect. They are now
authorized and empowered to get their
name mutated in the records of Nagar
Nigal Kanpur etc. as absolute owner and
to get the membership of the Flat Owners
Association. She has also full right to
make any addition, alteration within the
walls of the flats without damaging the
existing wall, roofs, etc. and to exercise
all their rights over the said flat as
absolute owner.

.....

9. That the Vendor has handed
over the original sale deed document No.
9095 of 2004 to the Vendee. The Vendee
has read and understands the contents of
the said sale deed and they are fully
satisfied with entire contents thereof. All
the terms and conditions of the said sale
deed shall be applicable on this Sale
Deed and the Vendee shall abide by the
same
henceforth."
(Emphasis Supplied)

10. It is also pertinent to note that
the area sold has been clearly mentioned
in the map annexed with the sale deed at
page 95 of the paper book. This map
clearly indicates that the covered area of
Flat No. 102 is 37.16 sq. mts. and
undivided share in the land is 24 sq. mts.
In the map on western side of the flat
open space has been clearly shown. This
document was not appreciated by the trial
court although the defendant himself has
place the photocopy of the same as Paper
No. 21-Ga/1 to 21-Ga/15. This document
which was admittedly filed by the
defendant himself, was considered by the
lower appellate court while deciding
points for determination no. 1, which was
framed to the effect that the space in
front of Flat No. 102 is a common open
space available for use of flat owners of
Jassi Apartments.
8 All. Suresh Khiyani Vs. Jassi Apartment Welfare Society
307

11. I find that the property
purchased by the wife of defendant no. 1
is well defined and leaves no room for
doubt that the area in question is an
undivided open space for use of all the
flat owners. Internal page 6 of the sale
deed (Page 86 of the paper book) clearly
mentions the covered area 37.16 sq. mts.
constructed at freehold plot No. 179
Block R.N. Ratan Lal Nagar Kanpur
Nagar
known
as
Jassi
Apartment
alongwith undivided share in the land
admeasuring 24 sq. mts. together with
parking space on ground floor of the
premises alongwith common use of
entire facilities and amenities provided in
the apartment by virtue of registered sale
deed dated 9.9.2004. In paragraph 2 of
internal page 9 of the sale deed (page 89
of the paper book) it has been clearly
provided that the flat owners has full
right to make any addition, alteration
within the walls of the flats without
damaging the existing walls, roofs, etc.
Thus, it clearly indicates that they are
fully aware of the same and are bound by
such terms. It is, therefore, clear that the
defendant, whose wife was owner of Flat
No. 102, who has purchased the flat in
the name of his wife, (in other words, his
wife is owner of Flat No. 102), is fully
aware of the area sold and that the
common area is for use of all the flat
owners. He is also aware of the fact that
the construction or making addition or
alteration is permitted only within the
walls of the constructed area and not
beyond that and that the constructed area
is 37.16 sq. mts. only and the undivided
share in the land measuring 24 sq. mts.,
is a common space open for use of all the
flat owners.

12. It is pertinent to point out that
admittedly, construction in the shape of
wall was not raised within the walls of
the constructed area measuring 37.16 sq.
mts. sold to him or his wife. The
allegations of encroachment are against
the defendant that he has encroached the
open land. A suit for injunction is
maintainable against the person, who has
raised illegal construction or has shown
to have done some unauthorized act or
has encroached the open area. Therefore,
I find that the objection that the suit was
bad for non-joinder is not attracted in the
present case. Photocopy of the sale deed
was filed by the defendant, which was
not disputed by the plaintiff and thus, it
was his own document regarding which
now he now cannot take u-turn that the
same was not admissible as evidence
being a photocopy.

13. Insofar as provision of Section
25 (3) and (4) of the U.P. Apartment
(Promotion of Constructions, Ownership
and
Maintenance)
Act,
2012
is
concerned, suffice to note that the same
is in respect of an offence or is criminal
in nature and refers to the offence that
may have been committed by a person. It
is a civil suit for injunction regarding
encroachment on common open area.
The criminal aspect of any act of a
person is a different aspect and for this
reason alone it cannot be said that the suit
for injunction was not cognizable by the
civil court against the private individual,
who, according to him, was not the
owner of the flat.

14. It is not in dispute that the
society was registered during pendency
of the suit. Even otherwise, at the
instance of the appellant no issue was
framed on this ground and even in appeal
the same was not raised or insisted upon
for framing of points of determination.
308 INDIAN LAW REPORTS ALLAHABAD SERIES
Therefore, the same cannot be agitated
now. Even otherwise, I do not find that
this question is a substantial question of
law, which is attracted or is required to
be answered or requires a decision of this
Court in the present appeal, when as per
his own document, the defendant was not
the owner of the space / property in
dispute and has encroached upon the
common area open for use of the flat
owners of the society, which was
ultimately registered during pendency of
the suit and defect, if there was any, was
removed during pendency of the suit.

15. Insofar as Section 43 of RERA,
2016, which came into force during
pendency of the suit is concerned, suffice
to note that the order was not passed by
the RERA authority under the Act and
therefore, the aforesaid provision of the
Act is not attracted in the present case,
which has arisen out of the suit for
injunction instituted in a civil court. Even
otherwise, all such grounds were not
taken before the trial court or the lower
appellate court and I am not inclined to
entertain the same.

16. The law is settled that the
plaintiff is 'dominus litis' and therefore, it
is his discretion to add a party to implead
any person. In case no relief is being
claimed against any person, he is the best
Judge to see against whom he is claiming
relief and he cannot be pressed to add
party against whom he does not want to
fight unless it is the compulsion of the
rule of law. In other words, he may
choose the persons against whom he
wishes to litigate.

17. A reference may be made to
judgment of Hon'ble Supreme Court in
Mumbai International Airport Private
Limited
vs.
Regency
Convention
Centre and Hotels Private Limited and
others 2010 (7) SCC 417, paragraphs 13
to 15 whereof are quoted as under:-

"13. The general rule in regard
to impleadment of parties is that the
plaintiff in a suit, being dominus litis,
may choose the persons against whom he
wishes
to
litigate
and
cannot
be
compelled to sue a person against whom
he
does
not
seek
any
relief.
Consequently, a person who is not a
party has no right to be impleaded
against the wishes of the plaintiff. But
this general rule is subject to the
provisions of Order I Rule 10(2) of Code
of Civil Procedure (`Code' for short),
which provides for impleadment of
proper or necessary parties. The said subrule is extracted below:

"10 (2) Court may strike out or
add parties.- The Court may at any stage
of the proceedings, either upon or
without the application of either party,
and on such terms as may appear to the
Court to be just, order that the name of
any party improperly joined, whether as
plaintiff or defendant, be struck out, and
that the name of any person who ought to
have been joined, whether as plaintiff or
defendant, or whose presence before the
Court may be necessary in order to
enable
the
Court
effectually
and
completely to adjudicate upon and settle
all the questions involved in the suit, be
added."

14. The said provision makes it
clear that a court may, at any stage of the
proceedings (including suits for specific
performance), either upon or even
without any application, and on such
terms as may appear to it to be just, direct
that any of the following persons may be
added as a party: (a) any person who
8 All. Suresh Khiyani Vs. Jassi Apartment Welfare Society
309
ought to have been joined as plaintiff or
defendant, but not added; or (b) any
person whose presence before the court
may be necessary in order to enable the
court to effectively and completely
adjudicate upon and settle the question
involved in the suit. In short, the court is
given the discretion to add as a party, any
person who is found to be a necessary
party or proper party.

15. A `necessary party' is a
person who ought to have been joined as
a party and in whose absence no effective
decree could be passed at all by the
Court. If a `necessary party' is not
impleaded, the suit itself is liable to be
dismissed. A `proper party' is a party
who, though not a necessary party, is a
person whose presence would enable the
court to completely, effectively and
adequately adjudicate upon all matters in
disputes in the suit, though he need not
be a person in favour of or against whom
the decree is to be made. If a person is
not found to be a proper or necessary
party, the court has no jurisdiction to
implead him, against the wishes of the
plaintiff. The fact that a person is likely
to secure a right/interest in a suit
property, after the suit is decided against
the plaintiff, will not make such person a
necessary party or a proper party to the
suit
for
specific
performance."
(Emphasis Supplied)

18. Same view was expressed by
the Hon'ble Supreme Court in Gurmit
Singh Bhatia Vs. Kiran Kant Robinson
and others 2019 AIR (SC) 3577 after
considering earlier law in paragraph 5.2
it was held as under, extract whereof is
quoted as under: -

"............. The Plaintiffs cannot
be forced to add party against whom he
does not want to fight. If he does so, in
that case, it will be at the risk of the
plaintiffs." (emphasis supplied)

19. A reference may be made to
judgment of Hon'ble Supreme Court in
the case of Kasturi vs. Uyyamperumal
2005 (6) SCC 733, wherein the Hon'ble
Supreme Court has considered the
principle of dominus litis. This judgment
was recently relied on by Hon'ble
Supreme Court in the case of Gurmit
Singh Bhatia vs. Kiran Kant Robinson
and others 2020 (1) ARC 381.

20. In the present case the plaintiff
was not seeking relief against the wife of
the defendant, who may be the owner of
Flat No. 102 and the allegation was
against the defendant that he has
encroached upon the common area, may
be in active support of his immediate
family members i.e. wife and son, as
such wife of the defendant was not a
necessary party to the suit and it cannot
be said that the suit is bad for non-joinder
of necessary parties.

21. A Constitutional Bench of 5
Judges of Hon'ble Apex Court in Sir
Chunilal vs. Mehta and sons Ltd vs.
Century Spining and Manufacturing
Co. Ltd AIR 1962 SC 1314 has
considered the question 'as to what is the
substantial question of law'. Various
judgments of High Courts and Full
Bench were considered by the Hon'ble
Constitutional Bench and it was held that
if the question is settled then it would not
be a substantial question of law.
Paragraph 6 of the aforesaid judgment is
quoted as under:-

"6.
We
are
in
general
agreement with the view taken by the
310 INDIAN LAW REPORTS ALLAHABAD SERIES
Madras High Court and we think that
while the view taken by. the Bombay
High Court is rather narrow the one taken
by the former High Court of Nagpur is
too wide. The proper test for determining
whether a question of law raised in the
case is substantial would, in our opinion,
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 or by the
Privy Council or by the Federal Court or
is not free from difficulty or calls for
discussion of alternative views. 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 that the plea raised is
palpably absurd the question would not
be a substantial question of law."
(emphasis supplied)

22. Therefore, it is clear that merely
because in the substantial questions of
law so framed in the memo of appeal
involving interpretation of any particular
provision of the law by itself could not be
substantial questions of law.

23. In the opinion of this Court, no
substantial question of law is involved in
the present appeal, which requires any
interpretation by this Court in view of the
law laid down by Hon'ble Apex Court in
Sir Chunilal vs. Mehta and sons Ltd
(supra) and the questions framed in the
memo of appeal, even if are treated to be
questions of law, they are not open to
interpretation.

24. I have already considered this
issue in the case of (Harihar Tiwari vs.
Kshetriya Sri Gandhi Ashram (Second
Appeal No. 94 of 2020) decided on
27.1.2020.

25.

For
the
discussions
made
hereinabove I find that no substantial question
of law is involved in the present case.

26. The appeal is devoid of merits
and is accordingly dismissed.
----------
(2020)08ILR A310
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Second Appeal No. 277 of 2020

Yogendra Pal Singh ...Appellant
Versus
Hari Singh & Ors. ...Respondents

Counsel for the Appellant:
Sri Arjun Singhal, Sri Sunil Kumar Singh

Counsel for the Respondents:
-----

(A) Civil Law - Code of Civil Procedure
,1908 - Plaintiffs-respondents filed a suit for
permanent injunction against the defendantappellant - ground - they are the owners of
the property in question - on the basis of a
registered sale deed executed in favour of
their father - defendant-appellant is trying to
dispossess them - trial Court allowed the suit
for injunction - ground - receipt does not
confer any right or title to the defendant -
failed to prove the possession - suit decreed
by the trial Court - appeal filed by the
defendant was dismissed by the lower
appellate court. (para -3)

HELD:- No substantial questions of law arise
in the present second appeal and the other