R.S.A. No. 1095 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1095 of 2009 (O&M) Date of Decision : 9.3.2009 Harnek Singh .......... Appellant Versus Darbara Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Harsh Aggarwal, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 4.1.2006 and 2.1.2009 passed by the learned Courts below vide which suit filed by the plaintiff-respondent for possession stands decreed. The plaintiff / respondent brought a suit for possession on the plea that he was owner of the land which was in unauthorised possession of the appellant / defendant. The suit was based on the previous judgment and decree passed inter se between the parties in civil suit No. 654 of 9.8.1994 for specific performance of agreement wherein the defendant / appellant claimed the suit property on the basis of compromise / agreement dated 10.1.1994. The learned Courts below have recorded a concurrent finding that in the previous suit the appellant-defendant was found in unauthorised R.S.A. No. 1095 of 2009 2 occupation of the land in dispute. The judgment and decree passed by the learned Courts below is, thus, based on the decree passed in previous suit. The learned counsel for the appellant contends that this appeal raises the following substantial questions of law for consideration by this Court :- 1. Whether the findings recorded by the learned Courts below are perverse in view of the evidence brought on record ? 2. Whether the possession of the appellant will be presumed to continue as the part performance of the agreement ? 3. Whether the learned lower appellate Court was justified in deciding the applications for amendment and additional evidence along with the main appeal ? In support of the substantial questions of law the learned counsel for the appellant contends that the findings recorded by the learned Courts below are perverse as these are outcome of misreading of evidence as the learned Courts below failed to take note of the fact, that the appellant- defendant was in possession of the property under the agreement to sell and thus he was entitled to protection under Section 53-A of the Transfer of the Property Act. It is also the contention of the learned counsel for the appellant that the learned Courts below wrongly decided the applications for amendment and additional evidence along with the main appeal. R.S.A. No. 1095 of 2009 3 On consideration of the matter, I find no force in the contentions raised by the learned counsel for the appellant. The learned Courts below have based their decision on the judgment and decree passed inter se between the parties which has attained finality and therefore, the judgments and decree passed by the learned Courts below cannot be said to be outcome of misreading of evidence. The learned Courts below rightly rejected the plea of the appellant that he would be presumed to be in possession of the property in dispute in view of the part performance of agreement as the said compromise / agreement already stood rejected in previous litigation. Therefore, it cannot be said that the defendant / appellant was in possession by way of part performance of agreement to sell, as contended. The learned Courts below were also justified in deciding the applications for amendment and additional evidence along with the main appeal, the order passed on the applications also does not suffer from any illegality. The substantial questions of law raised do not arise for consideration in this appeal. No merit. Dismissed. 9.3.2009 ( VINOD K. SHARMA ) 'sp' JUDGE