R.S.A. No. 3777 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3777 of 2008 (O&M) Date of decision: 20.04.2009 Sita Ram ....Appellant Versus Dalip Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. H.O. Attri, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 26.7.2006 passed by the learned lower appellate Court vide which the suit filed by the plaintiff/respondent for permanent injunction stands decreed. The plaintiff brought a suit for permanent injunction restraining the defendant/appellant from interfering in the possession of the plaintiff/respondent in the suit land. The suit was contested by the defendant/appellant by raising a plea that, in fact, it was the defendant/appellant, who was in possession of the property under agreement to sell executed in his favour. It was further the case set up by the defendant that total sale consideration was paid and entry in this regard was made in the bahi entry. R.S.A. No. 3777 of 2008 (O&M) -2- The learned trial Court dismissed the suit keeping in view the admission made by the plaintif/respondent while appearing as witness that the possession has been taken by the defendant/appellant during the pendency of the suit. In appeal, the learned lower appellate Court reversed the judgment and decree passed by the learned trial Court, and has moulded the relief by issuing mandatory injunction directing the defendant/appellant to hand back the possession, illegally taken from the plaintiff/respondent during the pendency of the suit. The learned lower appellate Court took note of the fact that in the revenue record, it is the plaintiff/respondent, who was shown in possession of the suit property. The learned lower appellate Court further noticed that the defendant/appellant had failed to prove or place on record the agreement to sell said to have been executed in favour of the defendant/appellant, nor any bahi entries were proved to show the payment of sale consideration. The learned lower appellate Court, therefore, held that the defendant/appellant, failed to prove the case set up and in view of the positive evidence on record showing that the plaintiff/respondent was owner in possession of the property and was wrongly dispossessed during the pendency of appeal, modified the relief claimed by ordering delivery of possession to the plaintiff/respondent. The learned counsel for the appellant contends that this appeal raises the following substantial question of law: - “Whether the learned lower appellate Court could decree the suit for injunction, once an admission was made by the R.S.A. No. 3777 of 2008 (O&M) -3- plaintiff/respondent that he was dispossessed from the property in dispute during the pendency of the suit?” In support of the substantial question of law, the learned counsel for the appellant contends that in the suit, the defendant/appellant had produced on record the bahi entries, which was duly exhibted, which shows that the possession was handed by the plaintiff/respondent and was not forcibly taken. Once it was admitted by the plaintiff/respondent that he was dispossessed, it was for the plaintiff to have amended the suit, as the suit for injunction was not competent. This plea of the learned counsel for the appellant cannot be accepted. The documents were sought to be exhibted by the defendant/appellant, however, the exhibition of the said documents was objected to. The learned lower appellate Court held that the original bahi entries were not produced, therefore, no reliance could be placed on the documents produced by way of photocopies. Even otherwise, the defendant/appellant had also failed to produce any agreement to sell on the basis of which, possession was said to have been given. Revenue entries continue to show the possession of the plaintiff/respondent, as owner of the land in dispute. In the facts and circumstances of the case, the learned lower appellate Court rightly held that as on the date of filing of the suit, the possession of the plaintiff/respondent was proved, the relief claimed was liable to be modified to do substantial justice. The learned lower appellate Court rightly set aside the judgment and decree passed by the learned trial Court and decreed the suit. The substantial question of law is answered against the R.S.A. No. 3777 of 2008 (O&M) -4- appellant/defendant. It may further be noticed here that this appeal is time barred by 80 days, and only ground taken is that the delay had occurred as the copy of the decree sheet, was not supplied with the copy of the judgment, which was necessary and, therefore, delay occurred, to get copy of decree sheet. It may be noticed that this appeal was filed on 20.11.2006 when the copy of the decreesheet was delivered to the defendant/appellant on 19.10.2006. The ground raised cannot be said to be sufficient cause for condonation of delay. In addition, there is also delay of 630 days in refiling the appeal. The blame is sought to be placed on another counsel. The averment, in the application that despite repeated requests, no steps were taken to file the appeal, prima facie cannot be accepted as client could not wait for almost two years with regard to filing of the appeal, as projected in the application. No ground is made out to condone the delay in filing/refiling the appeal. Consequently, the appeal is dismissed on merits as well as on the ground of limitation. (Vinod K. Sharma) Judge April 20, 2009 R.S.