RSA No. 1028 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1028 of 2010(O&M) Date of Decision: March 09 , 2010 Deepak Kumar and another ...... Appellants Versus Anirudh ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Sukhdeep Parmar, Advocate for the appellants. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgment of the learned Lower Appellate Court reversing that of the trial Court and thereby decreeing the suit of the respondent for possession of 1 marla of land. The undisputed facts are that the appellants and respondent were co-owners of the land and that regular partition was carried out between them. It is also not disputed that the land in dispute was allotted to the share of the respondent, however, physical possession was admittedly not handed over to the respondent because there was a Kotha which had been constructed by the father of the appellants in the said land. Thereafter at one stage the respondent moved an application for assessment of the RSA No. 1028 of 2010(O&M) 2 value of the said Kotha before the revenue authorities so that upon paying the same he could take possession of the land which had fallen to his share. That application was dismissed. It is not disputed that on the ground that the value of the Kotha has to be handed over to the appellants, the appellants have continued to be in possession of the land for the last 18 years. It is in these circumstances that the learned Lower Appellate Court held that the respondent was entitled to possession of the said land. The following questions have been proposed:- i) Whether the impugned judgment and decree of Lower Appellate Court is result of mis-reading and mis-appreciation of law and evidence? ii)Whether the Lower Appellate Court being final court of fact ought to have dealt with each and every aspect/pleadings of the appellant while setting aside the well reasoned judgment and decree of trial Court? iii)Whether the judgment and decree of Lower Appellate Court is erroneous, perverse and not sustainable in the eyes of law? iv)Whether the unproved documents like Ex.P3 and Ex.P4 can be taken into consideration especially when the same have not been proved and the application for additional evidence filed by respondent was dismissed by trial Court on 20.3.2009? v) Whether the suit of the plaintiff-respondent is time barred? vi)Whether the suit of the plaintiff-appellant is not maintainable due to non-joiner of necessary party as Kuldeep Singh has not been impleaded as a party in the suit despite specific objection raised by the appellant-defendant? Questions No. (i) to (iv) are pure questions of fact. As regards question No. (v) learned Lower Appellate Court has rightly held that suit based on title cannot be held to be time barred. As regards question No. (vi) RSA No. 1028 of 2010(O&M) 3 also learned Lower Appellate Court has rightly noticed that Kuldeep Singh had parted away with the ownership of the land as far back as 1992 in a consent decree between the appellants and Kuldeep Singh. Consequently all the questions proposed have to be held against the appellants. Resultantly this appeal as well as the application for stay are dismissed with, however, a caveat that the appellants may seek appropriate remedy for recovery of the value of the Kotha. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE March 09, 2010 sunita