R.S.A. No. 3371 of 2006 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 3371 of 2006 (O&M) Date of Decision : 3.2.2009 Karnail Singh Doad .......... Appellant Versus Sukhjinder Kaur & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. H.S. Sirohi, Advocate for the appellant. Mr. I.S. Brar, Advocate for respondent No.1. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 8308-C of 2006 This is an application under Section 5 of the Limitation Act for condoning the delay of 19 days in filing the appeal. The ground taken in the application is that the delay of 19 days is on the part of the learned counsel for the appellant. It is well settled law that for the fault of the counsel, the parties could not be allowed to suffer. Consequently, the C.M. is allowed and delay of 19 days in filing the appeal is condoned. R.S.A. No. 3371 of 2006 This regular second appeal is directed against the judgments R.S.A. No. 3371 of 2006 (O&M) -2- and decree dated 19.4.2005 and 2.2.2006 passed by the learned Courts below restraining the defendants from interfering in the passage marked ABCD. The plaintiff brought a suit that in pursuance to the exchange deed entered into between the parties. Plaintiff / respondent exchanged the area KLEG with area IJFH shown in the site plan attached with the plaint. The plaintiff / respondent claimed that the defendant-appellants were trying to close the passage ABCD to which they have no right as the passage had been in existence for 30 years and was being used by the parties. The suit was contested on the plea that there was no passage as on the Southern side of the site plan the defendant-appellant has his house and there is no passage ABCD in existence as claimed by the plaintiff / respondent. The learned Courts below on appreciation of evidence on record have recorded a concurrent finding of fact that passage ABCD is in existence and opens on the new Cantt. Road. The learned counsel appearing on behalf of the appellant contends that the appeal raises the following substantial questions of law for consideration by this Court :- 1. Whether the oral evidence could preclude the documentary evidence brought on record in view of Section 92 of the Evidence Act ? 2. Whether the learned Courts below could rely upon the report of the Local Commissioner, who was not subjected to cross-examination ? R.S.A. No. 3371 of 2006 (O&M) -3- In support of the second substantial question of law the learned counsel for the appellant contends that the report of the Local Commissioner who was not subjected to cross-examination could not be read into evidence. There is force in the contention of the learned counsel for the appellant. The learned Courts below were not right in relying upon the report of the Local Commissioner, who was not subjected to cross- examination by the defendant-appellant. However, this cannot be a ground to upset the judgments and decree passed by the learned Courts below as in the present case, besides the report of the Local Commissioner, there is other evidence on record that passage ABCD was in existence. On the first substantial question of law, the learned counsel for the appellant contends that the exchange deed showed, that on the Southern side there was houses of the appellant-defendant and once that fact was proved by way of documentary evidence the oral evidence to hold that passage was in existence could not be accepted. The finding recorded by the learned Courts below, therefore, is hit by Section 92 of the Evidence Act. In support of this contention the learned counsel for the appellant placed reliance on the judgment of this Court in the case of Krishi Utpadan Mandi Samiti Sahaswan District Badaun Through its Secretary Vs. Bipin Kumar and another 2004(2) P.L.R. 70. This contention of the learned counsel for the appellant cannot be accepted. In the exchange deed it has been shown that on the Southern side there was house of the appellant-defendant . Even in the site plan R.S.A. No. 3371 of 2006 (O&M) -4- attached by the plaintiff the house of Karnail Singh is shown. On record there is admission by the appellant-defendant himself in cross-examination while appearing as DW-1 that the passage ABCD opens on new Cantt. Road. It can not be said that the oral evidence is contrary to the documentary evidence on record. The oral evidence is rather in consonance with documentary evidence. The findings of learned Courts below is thus based on evidence on record and also in view of admission of appellant. The first substantial question of law is also answered against the appellant. There is no merit in the appeal. It is ordered to be dismissed in limine. 3.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE