RSA No.4407 of 2009 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4407 of 2009 (O & M) Date of Decision: 09.09.2010. Krishan Kumar .....Appellant Versus Narain Dass ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.Balraj Gujjar, Advocate for the appellant. L. N. MITTAL, J (ORAL) CM No.13264-C of 2009 For reasons mentioned in the application, delay of 25 days in refiling the appeal is condoned. CM No.13265-C of 2009 Allowed as prayed for. CM NO.13266-C of 2009 For reasons mentioned in the application which is accompanied by affidavit, delay of 29 days in filing the appeal is condoned. Main Appeal. Krishan Kumar-plaintiff has filed the instant second appeal having lost in both the Courts below. Appellant filed suit against Narain Dass-respondent- defendant alleging that vide compromise dated 31.03.1989 effected between appellant's father Wazir Chand and Narian Dass and his father, it was agreed that the plaintiff-appellant would give vacant RSA No.4407 of 2009 (O & M) -2- piece of land to the defendant-respondent whereas defendant- respondent would give five feet wide passage by demolishing his shop to make the existing common passage wider. Accordingly, plaintiff-appellant gave vacant piece of land to the defendant- respondent, but the defendant-respondent failed to provide 5 ½ feet wide passage by demolishing his shop. The plaintiff-appellant, therefore, sought possession of 5 ½ feet wide land by demolition of shop of defendant. The plaintiff-appellant also sought permanent injunction restraining the defendant-respondent from blocking the passage by raising construction in front of window of plaintiff's shop. The defendant denied the plaint allegations. The defendant denied the alleged compromise. It may be added that respondent-Narian Dass also filed a suit against Krishan Kumar-appellant and his son for permanent injunction. Both the suits were consolidated. Both the suits were dismissed by the trial Court i.e learned Additional Civil Judge (Senior Division), Hissar vide common judgment dated 19.09.2006. Krishan Kumar-appellant preferred first appeal against judgment and decree of the trial Court whereby appellant's suit was dismissed. However, the said appeal has been dismissed by learned Additional District Judge, Hissar vide judgment and decree dated 18.11.2008. Feeling aggrieved, plaintiff-Krishan Kumar has filed the instant second appeal arising out of the suit instituted by him. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that in view of compromise Ex.D-2 dated 31.03.1989, suit of the RSA No.4407 of 2009 (O & M) -3- plaintiff-appellant deserves to be decreed. I have carefully considered the contention, but find no merit therein. It has not been proved by the plaintiff-appellant that pursuant to compromise, the plaintiff-appellant or his father Wazir Chand left any land in favour of defendant-respondent-Narain Dass as required by the compromise. Appellant's witness Narain Dass Bhatia DW-3 stated that appellant's father Wazir Chand has not left any land in favour of Narain Dass defendant-respondent. Jagdish DW-2 of course supported the version of the appellant. However, both the Courts below have come to concurrent finding against the plaintiff-appellant. The said finding cannot be said to be perverse or illegal so as to warrant interference in second appeal. Lower Appellate Court is the final Court of fact. In the instant case, the decision is based on finding of fact and, therefore, the same does not warrant interference in second appeal as no question of law, much less substantial question of law, arises for determination in the instant second appeal. In addition to the aforesaid, the instant suit filed by the appellant is practically a suit for enforcement or specific performance of alleged compromise dated 31.03.1989 which can be termed to be an agreement between the parties. Consequently, even if the entire version of the plaintiff-appellant is accepted, his suit is hopelessly barred by limitation. The compromise stipulated period of six months for implementation thereof. If the same was not implemented within the stipulated period of six months, the plaintiff-appellant could file suit for enforcement or specific performance thereof within limitation period of three years. However, the instant suit was filed by the appellant on 25.02.2002 i.e more than 12 years after the expiry of six RSA No.4407 of 2009 (O & M) -4- months period stipulated in the agreement. In fact the instant suit was filed by the appellant after the respondent had already filed suit on 22.01.2002 against the appellant and his son. Thus the instant suit filed by the appellant was only a counter-blast to the suit instituted by the respondent against the appellant and his son. It may also be added with significance, as also noticed by the Courts below, that if there was genuine compromise, the plaintiff- appellant would not have waited for almost 13 years for filing the suit. Moreover, the plaintiff-appellant has failed to prove that he or his father had given vacant land to defendant-respondent as required by the compromise. For the reasons aforesaid, I find no merit in the instant second appeal, which is accordingly dismissed in limine. 09.09.2010. ( L. N. MITTAL ) A. Kaundal JUDGE