R. S. A. No. 1161 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1161 of 2010 (O&M) Date of Decision : November 10, 2010 Manjit Singh .... Appellant Vs. Gamdoor Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. A. S. Jattana, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 3511-C of 2010 : This is application by appellant for condonation of delay of 319 days in re-filing the appeal. It is alleged that the appeal, after being filed within limitation, was returned by the Registry by raising some objections on 11.11.2008, but inadvertently, clerk of the counsel put the file of the appeal in some decided case and it was traced only on 02.11.2009, while arranging the files. I have heard learned counsel for the applicant-appellant and perused the case file. R. S. A. No. 1161 of 2010 (O&M) 2 Learned counsel for the applicant-appellant reiterated the stand mentioned in the application. I have carefully considered the same, but I find the averments made in the application to be insufficient for condoning the long delay of more than ten months in re-filing the appeal. This standard excuse is taken invariably in almost every case, whenever there is long delay in re-filing the appeal. This excuse cannot be accepted to be genuine one. In addition to it, even when appeal was re-filed, the objections raised by the Registry initially on 11.11.2008 were not removed and the appeal was re-filed without removing the said objections and therefore, the appeal had to be returned again for removing the objections. For the reasons aforesaid, I find no sufficient ground for condoning the delay of 319 days in re-filing the appeal. The application is accordingly dismissed. Main Appeal : Since application for condonation of delay in re-filing the appeal has been dismissed, the appeal is liable to dismissal on this score alone. However, even on merits, the plaintiff-appellant cannot succeed. Plaintiff Manjit Singh has filed the instant second appeal having failed in both the courts below. The appellant filed suit against defendant-respondents alleging that appellant and respondent no.1 are real brothers. They effected family partition of their land. Defendant no.1 had R. S. A. No. 1161 of 2010 (O&M) 3 obtained electricity connection in dispute, which stood installed in the land, which fell to the share of the plaintiff-appellant in family partition. Accordingly, as per family partition, the said electricity connection was to be transferred by defendant no.1 in the name of plaintiff. Defendant no.1 gave affidavit dated 02.07.1997 for this purpose. Accordingly, plaintiff moved application to defendants no.2 to 4 i.e. Electricity Board and its Officers for transfer of the electricity connection and deposited security amount vide receipt dated 21.07.1998. However, the defendants did not transfer the electricity connection in the name of the plaintiff. Now, defendant no.1 has become greedy and wants to sell the electricity connection in question to somebody else. Accordingly, the plaintiff sought declaration that he is owner in possession of the aforesaid electricity connection including motor and the same is liable to be transferred in the name of the plaintiff. Ancillary relief of permanent injunction was also sought. Defendant no.1 contested the suit and inter alia pleaded that one acre land out of the land falling to his share was under mortgage for Rs.65,000/- and the plaintiff was to pay half the mortgage money for redemption of the said mortgage, but the plaintiff did not pay the same. The alleged family partition being unregistered is not admissible in evidence. Nothing was paid by plaintiff to defendant no.1 in lieu of connection and R. S. A. No. 1161 of 2010 (O&M) 4 motor in question. Affidavit dated 02.07.1997 allegedly of defendant no.1 is forged and fabricated. Alleged family partition was not acted upon and possession was not transferred to the plaintiff. The plaintiff has no concern with the electricity connection in question. Various other pleas were also raised. Defendants no.2 to 4 inter alia pleaded that on receiving application from the plaintiff for transfer of the connection in his name, notice was issued to defendant no.1, who gave affidavit praying that the electricity connection be not transferred in the name of the plaintiff. Thereupon, notice was issued to plaintiff vide letter dated 27.10.1998 for appearing in the office for further proceedings, but the plaintiff failed to appear pursuant to the said notice and consequently, plaintiff's application for transfer of the connection was declined. Various other pleas were also raised. Learned Civil Judge (Junior Division), Barnala, vide judgment and decree dated 20.01.2006, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Barnala, vide judgment and decree dated 27.08.2008. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. R. S. A. No. 1161 of 2010 (O&M) 5 Learned counsel for the appellant vehemently contended that according to family partition, the electricity connection in question was required to be transferred by defendant no.1 to the plaintiff and therefore, suit filed by the plaintiff-appellant deserves to be decreed. I have carefully considered the aforesaid contention, but find no merit therein. Defendants no.2 to 4 have pleaded that the plaintiff failed to appear before them pursuant to their notice dated 27.10.1998. Learned counsel for the appellant concedes that the said plea of defendants no.2 to 4 has not been controverted or rebutted by the plaintiff. For this simple reason, the plaintiff cannot succeed. Even otherwise, the plaintiff has miserably failed to prove his case. Plaintiff's main reliance is on family partition Ex.P-1. However, the plaintiff himself admitted in cross-examination that the said partition was not acted upon. Even his witness, Karam Singh PW-3 admitted this fact. Consequently, when the family partition was not acted upon, the plaintiff, under the garb of said family partition, cannot seek transfer of the electricity connection in his name. According to family partition, the plaintiff was to contribute half of the mortgage money of Rs.65,000/- pertaining to mortgage of land, which had fallen to the share of the defendant no.1, but admittedly, R. S. A. No. 1161 of 2010 (O&M) 6 defendant no.1 paid the said entire money and plaintiff-appellant has not contributed his half share. Thus, the plaintiff himself has resiled from the compromise and has not complied with the terms and conditions thereof. The matter does not rest here. According to family partition, one electricity connection was to be transferred by the plaintiff in favour of defendant no.1 and similarly, disputed electricity connection was to be transferred by defendant no.1 in favour of the plaintiff. The plaintiff has admitted that he has not transferred the electricity connection in favour of defendant no. 1 as per family settlement. Thus, this term and condition of the family partition has also not been complied with by the plaintiff himself. Karam Singh PW-3 also stated that defendant no.1 got the land redeemed by paying the entire mortgage money. Karam Singh also stated that after some time of execution of family partition, both the parties resiled from the family partition and did not accept the terms and conditions thereof. It is thus manifest that relying on the family partition, the plaintiff cannot seek transfer of the disputed electricity connection in his name when the family partition was admittedly not acted upon and the plaintiff himself has not complied with the terms and conditions thereof. It would also not be out of place to notice here with some significance that the alleged family partition, which is the bedrock of the claim of the plaintiff, is unregistered one, although it required compulsory R. S. A. No. 1161 of 2010 (O&M) 7 registration. For this added reason as well, the plaintiff cannot succeed. For the reasons aforesaid, I find no illegality or perversity in the concurrent finding of the courts below to non-suit the plaintiff-appellant. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine. November 10, 2010 ( L. N. MITTAL ) monika JUDGE