RSA No.3605 of 2006 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3605 of 2006 (O & M) Date of Decision: 05.04.2011 Mohinder Singh ……Appellant Versus Pamesh Kumar …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. B. S. Bedi, Advocate for the appellant. None for the respondent. L.N. MITTAL, J (ORAL) CM No.9055-C of 2006 This is application by appellant for condonation of delay of 382 days in filing the appeal. It is alleged in the application that the applicant-appellant is aged 70 years and is under treatment for the last three years. He also remained admitted in hospital many times. Discharge slips etc. would be shown at the time of arguments. I have heard learned counsel for the applicant-appellant and perused the case file. Learned counsel for the applicant-appellant reiterated the aforesaid averments. I have carefully considered the matter. Long delay of more than a year cannot be condoned on such vague, general and specious averments even if taken at face value. The applicant- appellant has not even mentioned the nature of ailment he is RSA No.3605 of 2006 (O & M) - 2 - suffering from or the period of hospitalisation. On the other hand, only vague and general averments have been made. No document of treatment has either been annexed with the application nor any such document has been shown during the course of arguments. If such long delay of more than a year is condoned without there being any ground much less sufficient ground, then the law of limitation would be defeated completely. For the reasons aforesaid, I find no sufficient ground for condonation of long delay of 382 days in filing the appeal. Accordingly, the application is dismissed. Main Appeal. Since application for condonation of delay in filing the appeal has been dismissed, the appeal is liable to dismissal as time barred. However, even on merits, the appellant cannot succeed. This is second appeal by Mohinder Singh-defendant, who was successful in the trial Court, but has been partly unsuccessful in the lower appellate Court. Respondent-plaintiff-Pamesh Kumar filed suit against defendant-appellant for possession of suit land comprised of khasra Nos.32/1, 31, 32/2 and 32/3 and for mesne profits thereof alleging that the plaintiff purchased the suit land vide sale deed dated 20.09.1988 and is, therefore, owner thereof. The defendant without any right, title or interest occupied the suit land forcibly and illegally. Accordingly, the plaintiff sought possession of the suit land and also recovery of mesne profits. The defendant while admitting that plaintiff has purchased the suit land and has become owner thereof, broadly denied the other plaint allegations. The defendant alleged that he was inducted RSA No.3605 of 2006 (O & M) - 3 - as tenant in the suit land by previous owners Sumer Chand etc. and accordingly defendant is in possession of the suit land as tenant. It was also alleged that sale deed in favour of the plaintiff has not been executed by one of the cosharers. It was alleged that possession of defendant is not illegal. Various other pleas were also raised Learned Civil Judge (Senior Division), Jagadhri vide judgment and decree dated 28.11.2002 dismissed the plaintiff’s suit. However, first appeal preferred by the plaintiff has been allowed partly by learned Additional District Judge, Jagadhri vide judgment and decree dated 08.02.2005 and thereby plaintiff’s suit has been decreed partly for possession of 3 kanals 10 marlas land of khasra No.32/1 out of the total suit land, along with mesne profits at the rate of Rs.1000/- per crop from the date of filing of suit till delivery of possession. Feeling aggrieved, defendant has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file whereas none has appeared for the respondent inspite of service. In the lower appellate Court, counsel for defendant (appellant herein) made statement on 20.01.2005 that defendant is not tenant over land of khasra No.32/1. However, thereafter defendant moved application for withdrawing the said statement alleging that the said statement was made inadvertently and is not correct. The said application was dismissed by the lower appellate Court by separate order dated 08.02.2005. The said order has not been challenged in the instant second appeal, although reference to RSA No.3605 of 2006 (O & M) - 4 - dismissal of the said application by the lower appellate Court as a fact has been made in paragraph 8 of the grounds of instant second appeal. In addition to the aforesaid, defendant also moved application in the lower appellate Court for additional evidence to produce order dated 04.12.1992 passed by Assistant Collector regarding correction of khasra girdwari of land of khasra No.32/1 in favour of the defendant. The said application was also dismissed by the lower appellate Court by separate order dated 08.02.2005. However, the said order has also not been challenged in the instant second appeal and in fact even reference thereto has not been made in this second appeal. In the aforesaid background, there is not even an iota of evidence on record to depict that the defendant is tenant over land of khasra No.32/1. Defendant produced order dated 22.03.1991 passed by Assistant Collector regarding correction of khasra girdwari in favour of the defendant, but the said order pertains to the suit land except land of khasra No.32/1. Consequently, the said order does not depict that defendant is tenant over land of khasra No.32/1 for which the suit has been partly decreed. Assistant Collector allegedly passed order dated 04.12.1992 regarding correction of khasra girdwari of land of khasra No.32/1 in favour of defendant, but the said order has not been produced in evidence. Consequently, it has been rightly held by the lower appellate Court that defendant is not proved to be tenant over the said land and, therefore, possession of the defendant over the said land is unauthorized. RSA No.3605 of 2006 (O & M) - 5 - Learned counsel for the appellant is unable to assail the said finding of the lower appellate court except submitting that statement dated 20.01.2005 by his counsel was wrongly made in the lower appellate Court and that vide order dated 04.12.1992 khasra girdwari of this land was also ordered to be corrected in favour of the defendant. However, order dated 04.12.1992 has not been produced in evidence and, therefore, the aforesaid contention cannot be accepted. Statement dated 20.01.2005 made by counsel for the appellant in the lower appellate Court further proves that defendant is not tenant over land of khasra No.32/1. The defendant has been unsuccessful in his effort to withdraw the said statement. For the reasons aforesaid, I find no merit in the instant second appeal. Finding of the lower appellate Court regarding land of khasra No.32/1 in favour of plaintiff-respondent and against the defendant-appellant is justified by the evidence on record. The said finding is not shown to be illegal or perverse in any manner nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. (L. N. MITTAL) JUDGE 05.04.2011 A.kaundal