R. S. A. No. 4393 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4393 of 2009 (O&M) Date of Decision : January 28, 2011 Rambir .... Appellant Vs. Kishan Lal and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Surinder Dagar, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 13238-C of 2009 : Application is allowed and Annexure A-1 is taken on record, subject to all just exceptions. C. M. No. 13240-C of 2009 : For reasons mentioned in the application, delay of 35 days in re-filing the appeal is condoned. C. M. No. 13239-C of 2009 : This is application for condonation of delay of 861 days in filing the appeal. It is alleged in the application that the defendant-appellant R. S. A. No. 4393 of 2009 (O&M) 2 had undergone Coronary Angiography in the year 2004 and undergone Angioplasty in June 2006 and remained admitted in hospital at Faridabad for three days, vide Discharge Summary (Annexure A-1). First appeal preferred by the defendant-appellant was decided by the lower appellate court vide judgment and decree dated 08.09.2006. Said decision was conveyed by counsel for the appellant to appellant's elder son, but not to the appellant himself. Appellant's elder son did not disclose the said decision to the appellant on account of appellant's heart problem. Appellant's son applied for certified copies of judgment and decree of the lower appellate court on 15.11.2008 and took delivery thereof on 21.11.2008. On advice of counsel, appellant's son also applied for copy of judgment and decree of the trial court, which were prepared on 08.12.2008 and delivered on 17.12.2008. Appellant's son was told by the counsel that appeal could be preferred by the appellant only and not by the appellant's son. However, nevertheless, appellant's son did not disclose factum of decision of first appeal to the appellant till April 2009. However, in April 2009, respondents/plaintiffs and other Harijans of the village came to the appellant and told him that first appeal stood dismissed in the year 2006 and therefore, they demanded handing over of the possession of the suit plot to them. Thereupon, the appellant learnt of the decision of the first appeal and thereafter, filed this appeal on 16.04.2009. R. S. A. No. 4393 of 2009 (O&M) 3 I have heard learned counsel for the applicant-appellant and perused the case file. Learned counsel for the applicant-appellant reiterated the version contained in the application. I have carefully considered the same. However, I find myself unable to accept the aforesaid version for condonation of long delay of 861 days i.e. more than 28 months in filing the appeal. Angioplasty of the appellant had taken place on 10.06.2006 and he was discharged from the hospital on 12.06.2006 vide Discharge Summary (Annexure A-1). However, first appeal preferred by the appellant was decided by lower appellate court on 08.09.2006 i.e. almost three months after the Angioplasty of the appellant. Consequently, it cannot be said that the appellant was still disabled from pursuing his litigation on account of Angioplasty undergone on 10.06.2006. In any case, it is unbelievable that decision of the appeal was not told to the appellant for almost three years after he had undergone Angioplasty and for 02 years and 07 months after the first appeal had actually been decided. There was no reason for not disclosing the decision of the first appeal to the appellant merely because he has undergone Angioplasty in June 2006. It may be added that even affidavit of appellant's son has not been annexed in support of the application. However, even taking averments made in the application at face value, the same do not make out a case for condonation of long delay R. S. A. No. 4393 of 2009 (O&M) 4 of 861 days in filing the appeal. If such long delay is condoned on vague, general and specious grounds pleaded in the application, then the law of limitation would be rendered completely infructuous. This cannot be permitted. For the reasons aforesaid, I find that no ground, much less sufficient ground for condonation of long delay of 861 days in filing the appeal is made out. Accordingly, the application is dismissed. Main Appeal : Since delay in filing the appeal has not been condoned, the appeal is liable to dismissal as time barred. However, even on merits, the appellant cannot succeed. Kishan Lal etc. - plaintiffs (respondents including legal representatives of plaintiff no.2) filed suit against defendant-appellant Rambir for possession of suit land measuring 09 marlas comprised of Plot No. 401/1 in representative capacity of Order 1 Rule 8 of the Code of Civil Procedure on behalf of all the Harijans of the village. The plaintiffs alleged that the suit plot is gairmumkin Chopal of Harijans and was handed over to Harijans of the village for construction of Chopal. Harijans of the village have been in its possession. Defendant has no concern therewith. However, on 28.11.1995, defendant occupied the suit plot illegally. On demand by plaintiffs and other Harijans of the village, the defendant refused R. S. A. No. 4393 of 2009 (O&M) 5 to hand over the possession of the suit plot, necessitating filing of instant suit for possession of the suit plot. Defendant broadly denied the plaint allegations. It was denied that suit plot was gairmumkin Chopal of Harijans. Defendant alleged that the suit land was not owned or possessed by Harijans. On the contrary, defendant has been in continuous possession of the suit land as owner. Various other objections were also raised. Learned Civil Judge (Junior Division), Palwal, vide judgment and decree dated 08.08.2003, decreed the plaintiffs' suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge (Ad hoc), Fast Track Court, Faridabad vide judgment and decree dated 08.09.2006. Feeling aggrieved, the defendant has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Plaintiffs have produced on record jamabandi for the year 1994-95 (Ex.P-1) depicting that the suit land was owned by Panchayat and was in possession of Harijans of the village being meant for their Chopal. Presumption of correctness attaching to jamabandi has not been rebutted. It is the case of the plaintiffs that defendant illegally occupied the suit land on 28.11.1995 and therefore, the instant suit was filed on 04.01.1996. There is R. S. A. No. 4393 of 2009 (O&M) 6 no documentary evidence on behalf of the defendant to depict that he has any right, title or interest in the suit land. The defendant alleged that he is in continuous possession of the suit land as owner. However, there is no document to depict that defendant is either owner or was in possession of the suit land prior to 28.11.1995, when according to the plaintiffs, the suit land was illegally occupied by the defendant for the first time. Learned counsel for the appellant vehemently contended that suit for permanent injunction filed by the defendant on 09.12.1995 against Gram Panchayat has been decreed vide judgment and decree dated 23.01.1999 (Ex.D-1 and Ex.D-2) and therefore, he is proved to be in possession of the suit land. The contention is misconceived and does not help the appellant in any manner. It is the case of the plaintiffs also that defendant occupied the suit land on 28.11.1995. Consequently, in the suit instituted thereafter on 09.12.1995 by the defendant herein, he has been rightly held to be in possession of the suit land and therefore, injunction has been granted restraining the Gram Panchayat from dispossessing the plaintiff of that suit (defendant herein) from the suit land except in due course of law. However, the said judgment and decree do not go against the version of the plaintiffs herein in any manner whatsoever. On the contrary, the plaintiffs have approached the Court to take possession of the suit land in due course of law. Accordingly, suit of the plaintiffs has been rightly R. S. A. No. 4393 of 2009 (O&M) 7 decreed by both the courts below. There is concurrent finding of fact recorded by both the courts below against the defendant-appellant and in favour of the plaintiffs. The said finding is fully justified by the evidence on record and is supported by cogent reasons recorded by the courts below. The same does not warrant any interference in this second appeal as the same is not shown to be perverse or illegal in any manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is thus found to be lacking any merit and is accordingly dismissed in limine. January 28, 2011 ( L. N. MITTAL ) monika JUDGE