RSA No.5105 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.5105 of 2010 (O&M) Decided on : 04.02.2011 Gulwant Singh @ Jaswant Singh ... Appellant Versus Gian Singh & others ... Respondents CORAM : HON'BLE MR. JUSTICE L.N.MITTAL Present : Ms. Sonia G.Singh, Advocate for the appellant. **** L.N.Mittal, J.(Oral) CM No.15035-C of 2010 This is application filed by appellant for condonation of delay of 330 days in refiling the appeal. It is alleged that initially the appeal was filed on 11.9.2009 within limitation but it was returned by the registry with some objections and it was refiled on 25.10.2010 but was again returned on 7.12.2010 and was refiled on 21.12.2010. It is alleged that clerk of counsel for appellant inadvertently put the case file in files of admitted cases and due to this reason, there has been delay of 330 days in refiling the appeal. I have heard counsel for the appellant and perused the case file. Learned counsel for the appellant reiterated the averments made in the application. However, the said averments even if taken at face value are not sufficient to condone the long delay of almost 11 months in refiling the appeal. There is bare allegation that clerk of the counsel inadvertently put the case file in RSA No.5105 of 2010 (O&M) -2- admitted case. On such vague, bald and specious allegation the long delay of 330 days cannot be condoned. If such long delay is condoned on such unsustainable ground, the law of limitation would be completely defeated. In fact this ground is being taken frequently in almost every case wherever there is long delay in refiling the case. It has become the standard excuse to seek condonation of long delay, which cannot be accepted. On the contrary on 23.12.2010, on the request of the counsel for the appellant, case was adjourned to 5.01.2011 to enable the appellant to file better affidavit in support of this application. Again on 5.01.2011, another adjournment was sought for the same purpose and the case was adjourned for today. However, even till today, no better affidavit has been filed in supoort of the application. Averments made in the application do not make out a ground much less sufficient ground for condonation of long delay of 330 days in refiling the appeal. Accordingly, the application stands dismissed. Main Case Since the application for condonation of delay of 330 days in refiling the appeal has been dismissed, the appeal is liable to dismissal on this ground. However, even on merits, the appellant cannot succeed. This is second appeal filed by plaintiff Gulwant Singh @ Jaswant Singh son of Amar Singh after remaining unsuccessful in both the courts below. The case of the plaintiff-appellant is that the suit land RSA No.5105 of 2010 (O&M) -3- measuring 24 kanals 18 marla is owned by his father Amar Singh and is in possession of the plaintiff for the last 25 years being son of the owner. The defendants, however, threatened to interfere in possession of the plaintiff over the suit land and threatened to take forcible possession thereof. The plaintiff sought permanent injunction against the said threatened action of the defendants. Defendants No.1 & 2 broadly denied the plaint allegations and inter alia pleaded that Amar Singh, who is father of plaintiff and defendants No.1 & 2, had sold the suit land to defendants No.1 & 2 vide sale deed dated 20.12.2001 and since then they are owners in possession of the suit land. It was, however, admitted that previously Amar Singh was owner of the suit land. Defendants No.3 and 4 also broadly denied the plaint allegations and inter alia pleaded that they have purchased 8 kanals land (partly being out of the suit land) from the plaintiff's father Amar Singh vide registered sale deed dated 20.12.2001 and since then they are owners in possession of the said 8 kanals land. Plaintiff has no concern with it. Various other pleas were also taken. Learned Addl. Civil Judge (Senior Division), Barnala vide judgment and decree dated 20.9.2007 dismissed the plaintiff's suit. First appeal preferred by the plaintiff stands dismissed by learned Additional District Judge, Barnala vide judgment and decree dated 9.6.2009. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard counsel for the appellant and perused the RSA No.5105 of 2010 (O&M) -4- case file. Learned counsel for the appellant has vehemently contended that plaintiff-appellant is proved to be in established possession of the suit land since the year 1979 onwards in view of consistent revenue entries (jamabandi and khasra girdawari) produced in evidence depicting possession of the plaintiff over the suit land and therefore, the plaintiff cannot be dispossessed from the suit land except in due course of law. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Rame Gowda(D) by LRs vs. Mr. Varadappa Naidu (D) by LRs. And another, 2004(1) SCC 769, wherein it was held that even a trespasser in established long possession cannot be dispossessed by the true owner except in due course of law. I have carefully considered the aforesaid contention, which is very attractive on first blush. However, on proper scrutiny the same cannot be accepted. Defendants have proved sale deeds dated 20.12.2001 whereby they have purchased the suit land and other land from Amar Singh, who was admittedly owner thereof. Consequently, defendants have become owners of the suit land. Neither plaintiff nor his father Amar Singh is left with any right, title or interest in the suit land. It is the plaintiff's own case that he was in possession of the suit land being son of the owner i.e. his own father Amar Singh. This plea of the plaintiff would depict that plaintiff's possession over suit land was merely as licensee. After the sale of the suit land by Amar Singh to the defendants, the license stands revoked because the defendants/transferees are not RSA No.5105 of 2010 (O&M) -5- bound by the said license in view of Section 59 of the Indian Easements Act, 1982. Consequently, plaintiff is not entitled to injunction prayed for as he has no right, title or interest in the suit land. The matter may also be examined from an other angle. The licensee is not deemed to be in actual possession of the property. His so called possession is possession of the licensor. On termination of license, the possession automatically reverts to the licensor. It is for this reason that on termination of license, the licensor is not required to file suit for possession of the property against the licensee. On the contrary, suit for mandatory injunction by licensor against licensee is maintainable. In this view of the matter also, the plaintiff is not entitled for permanent injunction as prayed for. His possession was as licensee under his father Amar Singh, who was then owner of the suit land. However, Amar Singh has since sold the suit land to the defendants and therefore, plaintiff is not entitled to injunction claimed by him. For the reasons aforesaid, I find no illegality or perversity in the concurrent judgments of the courts below, warranting interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. I find no merit in this appeal which is accordingly dismissed in limine. February 04, 2011 (L.N.Mittal) sonia Judge