R.S.A. No. 250 of 2007 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 250 of 2007 (O&M) Date of Decision : 20.3.2009 Kamla Wati & others .......... Appellants Versus Sukhlana Kumari & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Krishan Sehajpal, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 727 of 2007 This is an application under Section 5 of the Limitation Act for condoning the delay of 14 days in filing the appeal. It is pleaded that though appeal was prepared by the counsel, however, his Clerk had not attended the Office and therefore the same could not be filed. For the reasons stated in the application C.M. is allowed. The delay of 14 days in filing the appeal is condoned. R.S.A. No. 250 of 2007 This regular second appeal is directed against the judgments and decree dated 21.1.2005 and 23.8.2006 passed by the learned Courts below vide which suit for declaration filed by the plaintiffs claiming themselves to be owners in possession to the extent of 3/5th share out of the R.S.A. No. 250 of 2007 2 share of Suraj Parkash with a consequential relief of injunction stands dismissed. The plaintiffs brought a suit on the plea that the property was ancestral property in the hands of Suraj Parkash father of plaintiff No.1 and defendant No.1. Whereas Suraj Parkash was Karta of the family and therefore his name was recorded in the ownership and records of rights maintained by the revenue authorities. Suraj Parkash is said to have executed a registered Will bequeathing the property. It was claimed that the sale deed, and Will was not to affect the rights of the plaintiff. The suit was contested and on the pleadings of the parties the following issues were framed by the learned trial Court :- 1. Whether the plaintiffs are owners in possession to the extent of 3/5th share out of the share of Suraj Parkash ? OPP 2. Whether the sale deed executed by defendant No.1 in favour of defendant No. 3 dated 4.10.1996 is null and void ? OPP 3. Whether the plaintiff is entitled to declaration as prayed for ? OPP 4. Whether the plaintiff is entitled to injunction as prayed for ? OPP 5. Whether defendant No.3 is minor and has not been impleaded according to law ? OPD 6. Whether the suit of the plaintiff is not maintainable ? OPD 7. Relief.” However, in spite of availing number of opportunities including R.S.A. No. 250 of 2007 3 the last opportunity the plaintiffs failed to lead any evidence in support of their claim. Consequently, their evidence was ordered to be closed by order and the suit stands dismissed. Since the plaintiffs have failed to prove their case set up, therefore, the learned Courts below were right in dismissing the suit filed by the plaintiff / appellants. The learned counsel for the appellants contends that this appeal raises the following substantial question of law for consideration by this Court :- Whether the order passed by the learned trial Court closing the evidence of the plaintiff / appellant can be said to be perverse ? The learned counsel for the appellants in support of the substantial question of law contends that the plaintiff could not lead the evidence on the date given due to his age and incapacity to be present in the Court and, therefore, it was on account of the reasons beyond control, therefore, the learned trial Court committed an error in closing the evidence and decreeing the suit. There is no force in the contention raised by the learned counsel for the appellants. Firstly no such plea was raised by the plaintiff / appellants before the learned lower appellate Court. Further the plaintiff / appellants in the situation could have moved the application before the said Court or challenge the order. However, they chose not to challenge by way of revision nor the order closing evidence was challenged before learned lower appellate Court. The order closing the evidence was passed after R.S.A. No. 250 of 2007 4 affording number of opportunities to the plaintiffs but they failed to lead any evidence. No error could be found with the order passed by the learned trial Court in closing the evidence. As already observed, once the plaintiff / appellants failed to bring any evidence the learned Courts below rightly dismissed the suit. The appeal raises no substantial question of law for consideration by this Court. No merit. Dismissed. 20.3.2009 ( VINOD K. SHARMA ) 'sp' JUDGE