R.S.A. No. 1992 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.Ms. No. 5893-C, 5894-C of 2009 and R.S.A. No. 1992 of 2009 Date of decision: 25.05.2009 Smt. Chawli and others ....appellants versus Smt. Lichhmi and another ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Manoj Chahal, Advocate, for the appellants. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 23.12.2008 passed by the learned Courts below, vide which the suit filed by the plaintiff/appellants seeking injunction to restrain the defendants from carving out any rasta or interfere in the property in dispute as detailed in the head-note of the plaint, has been dismissed. The case set up by the plaintiff/appellants was that they are R.S.A. No. 1992 of 2009 (O&M) -2- owners in possession of the disputed property, as per jamabandi for the year 1999-2000, situated at village Dhana. There existed no private or Government path at the spot in the suit land. The plaintiffs claimed that they were in possession of the disputed property at the spot, and that the defendants have no concern whatsoever with the suit land. The case set up by the plaintiff/appellants was, that the defendant/respondents being strong persons, wanted to carve out path from the property of the plaintiff/appellants. The suit was contested, pleading therein that earlier the khata was joint and thereafter path was provided to the defendants in exchange. However, the defendant/respondents failed to prove the exchange. The learned trial Court appointed Local Commissioner, who submitted a report that the path was in existence, which was attempted to be dismantled by the plaintiff/appellants. The learned Courts below in the facts and circumstances of the case and keeping in view that there was no other passage to the land of the defendant/respondents, and also, that the path was already in existence, have declined the relief of injunction to the plaintiff/appellants. The learned counsel for the appellants contends that the appeal raises the following substantial question of law: - "Whether the judgment and decree passed by the learned Courts below is outcome of mis-reading of documentary and oral evidence on record, thus, perverse?" In support of the substantial question of law, the learned counsel for the appellants contends that once it was found as a fact that R.S.A. No. 1992 of 2009 (O&M) -3- the stand of the defendants that the path was given in exchange was proved to be wrong, it was not open to the learned Courts below to have dismissed the suit. The contention of the learned counsel for the appellants, therefore, is that the findings recorded by the learned Courts below are perverse being outcome of mis-reading of pleadings and evidence. On consideration, I find no force in the contention raised by the learned counsel for the appellants. Positive stand taken by the plaintiff/appellants to seek injunction was that the defendant/respondents wanted to forcibly and illegally carve out a path for going to their land in dispute. The report of the Local Commissioner and other evidence led proved that the path, was in existence on the date of filing of the suit. It is well settled that the plaintiffs are to stand on their own legs. Once the case set up by the plaintiff/appellants was not proved, as the path was in existence, and further that it was the only path going to the land of the defendants, the learned Courts below rightly held that the plaintiff/appellants were not entitled to injunction prayed for. The substantial question of law raised is answered against the appellants. It is held that the judgment and decree passed by the learned Courts below cannot be said to be perverse or outcome of mis-reading of pleadings or evidence on record. The appeal is also accompanied by an application under Section 5 of the Limitation Act for condoning the delay of 46 days in filing the appeal. The averments made for seeking condonation of delay read as under: - "That the above noted case could not be filed in time R.S.A. No. 1992 of 2009 (O&M) -4- because due to the communication gap between appellant and his counsel in the Appellate Court, because after the decision of the case on dated 23.12.2008, due to some personal difficulty appellant could not contact his counsel in time, and appellant has no knowledge about the limitation of the case. That when the appellant contacted his counsel about further processing of the case, then he came to know that the limitation has already been expired." The averments made are totally vague and do not make out sufficient cause for condoning the delay. An opportunity was granted to the plaintiff/appellants to file a better affidavit in support of the application. In spite of the opportunity having been granted, no such affidavit was filed, to make out a case for condoning the delay. Consequently, the appeal is dismissed on merits as well as on the ground of limitation. (Vinod K. Sharma) Judge May 25, 2009 R.S.