RSA No.4478 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4478 of 2010 Date of Decision: 29.11.2010. Sher Ali and others .....Appellants Versus Baru Khan ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. S.P. Soi, Advocate for the appellants. L. N. MITTAL, J (ORAL) Plaintiffs-Sher Ali etc., having remained unsucessful in both the Courts below, have filed the instant second appeal. Plaintiffs alleged that they are owners in possession of 12 marlas land comprised of khasra No.208. Plaintiffs' father temporarily permitted his brother Baru Khan defendant-respondent and other brothers to keep their residence in a part of the suit land. But the defendant after the death of plaintiffs' father became dishonest and greedy and got passed resolution dated 17.05.1986 by Gram Panchayat, but the said resolution was never acted upon. The defendant was also obtained memorandum of settlement dated 25.09.1986, but the same was also not acted upon. Both these documents were without consideration and not the result of free will of the plaintiffs. Accordingly, plaintiffs remained owners in possession of the suit property. The defendant tried to dispossess the plaintiffs from part of the suit property,but the defendant desisted from doing so. The defendant again started digging foundation in RSA No.4478 of 2010 -2- front of cattle house of the plaintiffs and the defendant actually succeeded in constructing a room there. The plaintiffs accordingly sought possession of their cattle house as well as of the site over which defendant had constructed a room on 29.11.1998 i.e 4 days before the filing of the suit. The defendant inter alia pleaded that he is in possession of the disputed site since 17.05.1986 by virtue of settlement. Panchayat resolution and memorandum of settlement were alleged to be valid and legal. The suit was alleged to be barred by limitation. It was denied that plaintiffs are owners or in possession of the suit land. The defendant is owner in possession thereof in view of compromise effected between the parties. Terms of memorandum of settlement executed by the parties were duly complied with. The said compromise was result of free will and consent of the parties without any pressure. Various other pleas were also raised. Learned Civil Judge (Junior Division), Chandigarh vide judgment and decree dated 23.12.2006 dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has been dismissed by learned District Judge, Chandigarh vide judgment and decree dated 10.11.2010. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contented that Panchayat resolution and memorandum of settlement were result of coercion and undue influence and were not complied with. It RSA No.4478 of 2010 -3- was also contended that defendant in the witness box admitted that he and his brothers had vacated the portion of the suit property before 15.03.1987 for which plaintiffs had paid them Rs.50,000/- and thus it would depict that the defendant thereafter illegally occupied the suit portion out of suit land measuring 12 marlas and, therefore, plaintiffs being owners thereof are entitled to possession thereof. I have carefully considered the aforesaid contentions, but find no merit therein. The contentions are apparently attractive, but in fact devoid of merit and misconceived and misleading. Learned counsel for the appellants vehemently contended that as per resolution and settlement, plaintiffs paid Rs.50,000/- and accordingly defendant vacated the suit property before 15.03.1987 as per terms of the settlement, as also admitted by the defendant. However, the plaintiffs have vehemently asserted in plaint that the resolution and the memorandum of settlement were never acted upon. Now counsel for the appellants tried to take a somersault and contended that pursuant to the settlement, the defendant and his brothers even vacated the suit property before 15.03.1987. However, in fact this is not the position. The defendant and his brothers were in possession of tabela (cattle house) and some other constructed portion. As per settlement dated 25.09.1986 read out by the counsel for the appellants, the defendant and his brothers were to vacate the constructed portion on receipt of Rs.50,000/-, but they were to retain the tabela/cattle house with them. The defendant has been very fair and honest and he candidly admitted in his cross-examination that he and his brothers vacated the portion in question before 15.03.1987 RSA No.4478 of 2010 -4- for which the plaintiffs had paid Rs.50,000/-. However, cattle house or tabela was not to be vacated by the defendant and was to remain with him as per settlement. Consequently, the plaintiffs are not entitled to possession of said portion out of the said suit land. Assertion of the plaintiffs in the plaint that memorandum of settlement was not acted upon stands falsified by the aforesaid contention of appellants that pursuant to the settlement, the defendant and his brothers had vacated the suit portion. In fact the defendant and his brothers vacated the constructed portion and retained the suit portion which is tabela or cattle house as per terms of the settlement. The very fact that the plaintiffs had taken advantage of the settlement which was acted upon and even possession of portion of the suit land was handedover to the plaintiffs by defendant and his brothers pursuant to settlement, would depict that there was valid and legal compromise and settlement between the parties and the same was even acted upon. Defendant is none else, but real paternal uncle of the plaintiffs. Initially Gram Panchayat got effected compromise between the parties vide resolution dated 17.05.1986. However, it appears that there was some problem even thereafter and consequently memorandum of settlement dated 25.09.1986 was again entered into by the parties and the same has since been complied with. There is another significant aspect of the matter. The plaintiffs' case is that their father had permitted the defendant and his brothers to reside in part of the suit land,but after death of plaintiffs' father, defendant became dishonest and got passed RSA No.4478 of 2010 -5- Panchayat Resolution dated 17.05.1986 and also obtained memorandum of settlement dated 25.09.1986. It would depict that defendant is in possession of the suit portion since before the year 1986. It is not even the case of the plaintiffs in their pleadings that the defendant ever vacated the suit portion. The very fact that the plaintiffs filed suit on 03.12.1998 after having remained silent for more than 12 years after Panchayat Resolution dated 17.05.1986 and memorandum of settlement dated 25.09.1986 would also depict that said settlements were voluntarily entered into by the plaintiffs and were also acted upon. Had it not been so as sought to be made out by the plaintiffs, they would not have remained silent for more than 12 years. They would have immediately agitated the matter. On the contrary, almost six months after the memorandum of settlement and almost 10 months after the Panchayat resolution, the plaintiffs got that possession of portion of the suit land in terms of the settlement effected by the parties. It is thus manifest that there was valid settlement between the parties and same was also acted upon, but after more than 12 years after the settlement, the plaintiffs became dishonest and filed the instant suit to disown the settlement of which the plaintiffs themselves had taken advantage of. The suit is also hopelessly barred by limitation to challenge the Panchayat Resolution and memorandum of settlement, the suit having been filed more than 12 years after the said documents were admittedly executed by the parties. There is concurrent finding of fact by both the Courts below against the plaintiffs/appellants. The said finding is based on RSA No.4478 of 2010 -6- evidence on record and is supported by cogent reasons. The said finding cannot be said to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of merit and is accordingly dismissed in limine. 29.11.2010. ( L. N. MITTAL ) A. Kaundal JUDGE