RSA No.1873 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1873 of 2010(O&M) Date of Decision: August 24, 2011 Kallu and others .....Appellants v. Chattar Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.M.S.Tewatia, Advocate for the appellants. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.9392-C of 2011 In view of the facts mentioned in the application, the same is allowed and order dated 19.7.2011 dismissing the appeal in default is restored. Registry is directed to register the appeal at its original number. C.M.No.5788-C of 2010 In view of the facts mentioned in the application, delay of 50 days in refiling the appeal is condoned. Application stands disposed of accordingly. RSA No.1873 of 2010 Present appeal has been filed against judgment and decree dated 10.8.2009 passed by learned Additional District Judge, Faridabad, accepting appeal filed by respondents-defendants against judgment and decree dated 26.7.2008 passed by learned Additional Civil Judge, (Senior Division), Hathin, decreeing the suit filed by predecessor-in-interest of present appellants, namely, Gurgal-plaintiff. RSA No.1873 of 2010(O&M) -2- I have heard learned counsel for the appellants and have gone through the whole record carefully including the judgments passed by learned Courts below. Briefly stated, predecessor-in-interest of present appellants, namely, Gurgal-plaintiff had filed a suit for possession by way of redemption of mortgage of the land in dispute, which was contested by respondents-defendants, inter alia, on the ground that suit is bad for principle of res-judicata. The said issue was decided by learned first appellate Court against the plaintiff and hence suit filed by plaintiff-Gurgal was ordered to be dismissed. The present suit has been filed by predecessor-in-interest of present appellants regarding the two sets of properties, i.e., property comprising in khasra No.18/18 and the other property comprising in khasra No.18/19/2. In respect of land comprising in Khasra No.18/19/2, earlier suit was filed by present plaintiff, which was decided by learned trial Court vide judgment Ex. D5. Perusal of the said judgment shows that there was a issue as to whether defendants are mortgagees of the suit land and have acquired ownership rights by prescription? While deciding the said issue, it was observed that there was no evidence that either plaintiff or his predecessor- in-interest has redeemed the mortgage and the period of redemption has already elapsed. Hence, it was held that defendants have acquired the ownership rights by lapse of redemption period. The finding of learned trial Court recorded vide judgment Ex.D5 was affirmed by learned Additional District Judge, Faridabad, vide judgment Ex.D7 and hence the same has become final. Hence, it has been rightly observed by learned first appellate Court that the present suit regarding the same land between the RSA No.1873 of 2010(O&M) -3- same parties on the same plea is barred by principle of res-judicata. So far as property comprising in Khasra No.18/18 is concerned, earlier as well suit bearing No.17 dated 7.1.1989 was filed by plaintiff regarding the said land, which was decided vide judgment Ex.D3 and in that case as well it was observed that the suit was filed without seeking relief of redemption and the suit of possession based on cancellation of licence of the defendants was not maintainable. In that case as well plea was taken by the defendants that they came in possession of the property in dispute as mortgagees and by lapse of time they had become owners of the same. While deciding issue no.2 in that case as well it was observed that possession of defendants over the property in dispute was of a mortgagee and not of licencee. The said judgment was also affirmed by learned Additional District Judge, vide judgment Ex.D3 and by this Court in RSA No.3366 of 1996. Hence, it has been rightly observed by learned first appellate Court that once defendants have taken the plea in the earlier suit that they are in possession as mortgagees, it was open for the plaintiff to seek relief of possession by way of redemption of mortgage and, however, the said relief was not claimed and hence, present suit is barred by principle of constructive res-judicata. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned first appellate court in passing the impugned judgment and decree. Finding recorded by learned first appellate court is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said RSA No.1873 of 2010(O&M) -4- finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 24.8.2011 (Ram Chand Gupta) meenu Judge