Regular Second Appeal No. 2433 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2433 of 2010(O&M) Date of decision : January 31, 2011 Siri Kant Sharma and others ....Appellants versus Brij Lal and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Hari Om Attri, Advocate, for the appellants L.N. Mittal, J. (Oral) CM No. 7311.C of 2010 This is application for condonation of delay of 232 days in filing the appeal. It is alleged that appellant no 1 who was earlier posted at Hisar was pursuing the litigation but after his transfer to Panipat he asked appellants no. 2 and 3 to pursue litigation. Since appellants no. 2 and 3 are residing at Rishikesh (District Dehradun) at distance of 300 kilometers from Bhiwani, appellants no. 2 and 3 also failed to remain in contact with counsel at Bhiwani. I have heard learned counsel for the appellants and perused the case file. Taking the averments of the appellants at face value, long delay of almost 8 months cannot be condoned. In fact, the appellants have made Regular Second Appeal No. 2433 of 2010(O&M) -2- false and untenable averments. Appellants no. 2 and 3 are mentioned to be residents of District Bhiwani in the memo of parties. Appellant no. 1 is also mentioned to be resident of District Bhiwani in the memo of parties. Even otherwise, appellants no. 2 and 3 had nothing to do with the litigation because they were proceeded ex parte in the suit and they also did not file first appeal which was filed by appellant no. 1 only. Even otherwise on transfer from Hisar to Panipat, it cannot be said that appellant no. 1 could not remain in touch with his counsel at Bhiwani. Even appellants no. 2 and 3 while residing at Rishikesh could remain in touch with their counsel at Bhiwani. Means of communication these days are very efficient and are readily available at cheap rates. Appellant no. 1 is said to be in government service. Consequently, it cannot be said that he could not remain in touch with his counsel at Bhiwani. It is, thus, manifest that averments made in the application do not make out a case for condonation of long delay of 232 days in filing the appeal. Accordingly, the application is dismissed. RSA No. 2433 of 2010 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, appellants cannot succeed. Suit was filed by respondents no. 1 to 5 herein against the appellants and proforma respondents no. 6 to 27. Appellant no. 1 was defendant no. 5 whereas appellants no. 2 and 3 were defendants no. 1 and 2 in the trial court. Respondents no. 1 to 5 – plaintiffs alleged that predecessor-in- interest of defendants no. 8 to 25 gave the suit land in exchange to Regular Second Appeal No. 2433 of 2010(O&M) -3- Chandrawali and Ram Kaur who gave some other land in the same village to predecessor of defendants no. 8 to 25 by way of exchange. Decree dated 31.3.1972 was also passed regarding the exchange. On death of Chandrawali her share was inherited by her sole heir Ram Kaur. Defendants no. 1 to 7 are heirs of Ram Kaur who was their mother. Since mutation on the basis of exchange was not sanctioned, defendants no. 8 to 25 continued to be recorded as owners of the suit land and predecessors of defendants no. 1 to 7 was recorded in possession thereof considering themselves to be owners. Similar converse entry was recorded regarding land given in exchange to predecessor of defendants no. 8 to 25. Plaintiffs purchased the suit land vide registered sale deed dated 4.8.1975 and since then they are owners in possession of the suit land measuring 28 kanals 12 marlas but entries in revenue record do not reflect the said position. Accordingly, the plaintiffs filed suit seeking declaration that they are owners in possession of the suit land and entries to the contrary in revenue record are wrong and illegal. All defendants except defendant no. 5 were proceeded against ex parte in the trial court. Defendant no. 5 put in appearance but no written statement was filed on behalf of defendant no. 5 also and his defence was struck off. Learned Civil Judge (Senior Division), Bhiwani vide judgment and decree dated 8.2.2006 decreed the plaintiffs' suit. First appeal preferred by defendant no. 5 only has been dismissed by learned Additional District Judge, Bhiwani vide judgment and decree dated 5.6.2009. Feeling aggrieved, defendants no. 1, 2 and 5 have preferred the instant second Regular Second Appeal No. 2433 of 2010(O&M) -4- appeal. I have heard learned counsel for the appellants and perused the case file. There is unrebutted evidence of the plaintiffs to prove that they are owners in possession of the suit land. Their possession is recorded in the revenue record also although not as owners. However, plaintiffs have produced sale deed dated 4.8.1975 whereby they purchased the suit land. In view of said sale deed, the plaintiffs are proved to be owners of the suit land. Concurrent finding of the courts below that plaintiffs are owners in possession of the suit land is justified by unrebutted evidence of the plaintiffs and is supported by cogent reasons. Even pleadings of the plaintiffs have not been controverted by any defendant. Concurrent finding of the courts below does not suffer from any illegality of perversity so as to call for interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is completely frivolous and meritless and is accordingly dismissed in limine. ( L.N. Mittal ) January 31, 2011 Judge 'dalbir'