IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2284 of 2008 Date of Decision: 5.2.2009 Mohinder Singh ...Appellant. Versus Janak Dulari and another ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. J.C. Verma, Senior Advocate with Ms. Meenakshi Verma, Advocate for the appellant. AJAY KUMAR MITTAL, J. This regular second appeal filed by defendant No.1 is directed against the judgment and decree dated 15.6.2007 passed by the Additional District Judge, Amritsar, affirming that of the Civil Judge (Junior Division), Amritsar, dated 9.5.2006, whereby the suit of the plaintiff for possession and mesne profits was partly decreed. The facts necessary for the disposal of the present appeal are that the plaintiff-Janak Dulari purchased ½ share of the property bearing khasra No. 135 min measuring 5 marlas situated at Kot Khalsa Sub-urban, Tehsil and District Amritsar and lying towards South of the property of the defendants, from Smt. Raj Kumari Ghai wife of Shri Sain Dass Ghai vide sale deed dated 15.1.1992. Defendant No.1 was owner of 5 marlas of property on Northern side of the property of the plaintiff. It was pleaded that the plaintiff had never alienated her property to any R.S.A. No. 2284 of 2008 -2- person whereas defendant No.1 (the appellant herein) had fabricated a false document in the form of agreement to sell and occupied her property illegally. It was further pleaded that on the basis of that false agreement, defendant No.1 filed a suit for specific performance of that agreement to sell and also for permanent injunction impleading the plaintiff as party-defendant No.2 and that said suit was pending. According to the plaintiff, neither she had executed any agreement to sell nor had ever delivered the possession thereof to the defendants, but they had illegally occupied the suit property. The plaintiff asked the defendants to hand over the vacant possession of her ½ share in the suit property and to pay mesne profit to the tune of Rs.18,000/- at the rate of Rs.500/- per month for illegal use and occupation of the suit property but they flatly refused to do so, which gave rise to the filing of the suit. To controvert the claim of the plaintiff, the defendants filed a joint written statement raising various preliminary objections. It was pleaded that the plaintiff had agreed to sell the suit property to defendant No.1 and had received Rs.21,000/- as the entire amount of sale consideration and in the notice dated 26.5.1997 she had admitted the factum of receipt of part payment of the amount of sale consideration. It was further pleaded that defendant No.1 had filed the suit for specific performance of the agreement to sell and the plaintiff and her husband after receiving the amount of Rs.10,000/- had got the sale deed executed on 15.1.1997 in favour of defendant No.1 and the original sale deed is in possession of the plaintiff. The other averments made in the plaint were denied and a prayer for dismissal of the suit R.S.A. No. 2284 of 2008 -3- was made. On appreciation of the oral as well as the documentary evidence led by the parties, the trial court held that the plaintiff was owner to the extent of ½ share of the suit property and was, therefore, entitled to possession thereof. Accordingly, the trial court vide judgment and decree dated 9.5.2006 partly decreed the suit by passing a decree for possession of ½ share in the suit property in her favour. However, the relief for grant of mesne profit to the plaintiff was declined as she did not even specify the period for which the mesne profits were claimed. The trial court directed the defendants to hand over the vacant possession of the suit property to the plaintiff within a period of two months. Being aggrieved, defendant No.1 filed an appeal before the lower appellate court which vide judgment and decree dated 15.6.2007 upheld the findings recorded by the trial court and dismissed the appeal. Hence, the present regular second appeal by defendant No.1. I have heard the learned counsel for the appellant and perused the impugned judgments with his assistance. Learned counsel for the appellant has made an endeavour to persuade this Court to re-appreciate the evidence available on record to differ with the findings recorded by the courts below but the same was not possible in view of the provisions of Section 100 of the Code of Civil Procedure. However, he could not point out any illegality or perversity in the judgments and decrees passed by the courts below warranting interference by this court in the regular second appeal. The courts below have concurrently held that the plaintiff was owner to the extent of ½ share of the suit property and was, therefore, entitled to get R.S.A. No. 2284 of 2008 -4- back the possession of the same. It was further observed by the courts below that since the sale deed dated 15.1.1997 was not produced on record of the case, it could safely be held that it was never executed either by the plaintiff or her husband in favour of defendant No.1. Moreover, the possession of the defendants over the suit property was found to be of trespassers and they had not pleaded their ownership over the suit property by way of adverse possession. Still further, since the agreement to sell, Ex.DW4/2, was allegedly executed by Krishan Kumar, husband of the plaintiff, in favour of defendant No.1, without any authority to do so from his wife, the owner of the suit property, the same could not be legally enforced as it did not confer any right in defendant No.1. Furthermore, it was also found that the identity of the property to which Ex.DW4/2 relates is vague and, thus, unenforceable being void abinitio. No question of law, much less a substantial question of law arises in this appeal. Finding no merit in this appeal, the same is hereby dismissed with no order as to costs. February 5, 2009 (AJAY KUMAR MITTAL) gbs JUDGE C.M. No. 6827-C of 2008 IN R.S.A. No. 2284 of 2008 Present: Mr. J.C. Verma, Senior Advocate with Ms. Meenakshi Verma, Advocate for the appellant. **** This is an application under Section 151 of the Code of Civil Procedure for condonation of 82 days' delay in refiling the appeal. After hearing the learned counsel and perusing the application which is supported by an affidavit, the delay of 82 days in refiling the appeal is condoned. CM stands disposed of accordingly. February 5, 2009 (AJAY KUMAR MITTAL) gbs JUDGE