RSA No.1594 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1594 of 2009 (O&M) Date of Decision: 18.05.2009 Nand Lal & Ors. ..Appellants Vs. Udey Ram ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Shailendra Jain, Advocate, for the appellants. --- Vinod K.Sharma,J. (Oral) CM No.4779-C of 2009 This is an application filed under section 151 of the Code of Civil Procedure (for short the Code) for exemption from filing the certified copy of Annexure A.1. For the reasons stated in the application the civil misc is allowed. The appellant is exempted from filing the certified copy of Annexure A.1. RSA No.1594 of 2009 2 CM No.4780-C of 2009 Allowed. CM No.4781-C of 2009 This is an application for making good the deficiency in the court fee. It has been averred that the court fee was paid. However, as the paper book was misplaced in the Registry, therefore the court fee has been affixed again. For the reasons stated in the application, civil misc. is allowed and the delay in making good the deficiency in the court fee is condoned. CM No.4782-C of 2009 This is an application for condoning the delay of 25 days in refiling the appeal. For the reasons stated in the application the same is allowed and the delay of 25 days in refiling the appeal is condoned. CM No.4783-C of 2009 This is an application under section 5 of the Limitation Act for condoning the delay of 307 days in filing the appeal. It has been averred in the application that the appeal was filed within limitation. However, the same was misplaced in the record of the Registry. Thus, it is claimed that it was taken back by the counsel for the appellant/applicant on 7.5.2008, thereafter present appeal was filed. It was on account of the facts stated that the delay of 307 days has occurred in filing the appeal. It is not in dispute that the appeal was filed within the period of RSA No.1594 of 2009 3 limitation. The explanation given in the application makes out sufficient cause as the delay cannot be said to be intentional, but bona fide and for the reasons beyond the control of the appellant. Consequently, the civil misc. is allowed and the delay in filing the appeal is condoned. RSA No.1594 of 2009 & CM No.5896C of 2009 This regular second appeal is directed against the judgment and decree dated 18.12.2007 passed by the learned courts below vide which suit filed by the plaintiff/respondent for possession being owner stands decreed. The plaintiff/respondent filed a suit for possession of the suit land being owner of the property in dispute. The property in dispute was said to be in use of the plaintiff and his predecessors for the last more than 100 years. The case set up by the plaintiff/respondent was that prior to filing of the present suit one Vijay Singh son of Mitter Singh and Raj Karan son of Ram Chander residents of village Kapriwas had filed a suit against the plaintiff, Sher Singh father of the defendants, and one Mannu son of Dev Karan. The suit was dismissed, in the said suit plea set up by late Sher Singh was that he was owner in possession pursuant to the sale deed was not accepted. The plaintiff/respondent was held to be owner in possession of the property. The appellant/defendants contested the suit by claiming themselves to be owners of the property in pursuance to the sale deed said to have been executed in their favour on 26.12.1983. Objection was also raised that the present suit was barred on the principle of res judicata. The learned courts below on appreciation of evidence decreed RSA No.1594 of 2009 4 the suit in view of the previous judgment wherein the plaintiff/respondent was held to be owner in possession of the suit property. Plea raised by the defendant-appellants claiming ownership was rejected being barred by the principle of res judicata. Mr.Shailendra Jain, learned counsel appearing on behalf of the appellants contends that this appeal raises the following substantial question of law for consideration by this court: “Whether the learned courts below committed an error in holding the claim of the appellant to be barred by res judicata? Learned counsel appearing on behalf of the appellant in support of the substantial question of law, contends that in the previous suit the plaintiffs as well as the predecessor of the appellants were defendants, and the inter- se dispute of ownership was not adjudicated. The finding in the previous suit, therefore, could not bar the present suit. Plea raised is that in the previous suit father of the defendant/appellants were proceeded against ex parte. The said findings were not binding on the appellant/defendants. On consideration of the matter, I find no force in the contentions raised by the learned counsel for the appellants. It was the plea of the defendant/appellants themselves that the suit was barred by principles of res judicata, in view of the decision in the previous suit qua same property. It may be mentioned here that the predecessors-in-interest of the defendant/appellants had set up title on the basis of sale deed, but it was not contested. RSA No.1594 of 2009 5 The finding was recorded in the previous suit holding the plaintiff/respondent to be owner in possession in which the predecessor of the defendants was party. The said findings though ex parte against the predecessor-in-interest were binding on the defendant/appellants in view of the stand taken in the written statement that the suit was barred on the principle of res judicata. Learned courts below rightly decreed the suit, which does not call for interference by this court. Substantial question of law raised in view of the specific stand taken by the defendant/appellants in the written statement is answered against the appellant. No merit. Dismissed. 18.05.2009 (Vinod K.Sharma) rp Judge