C.R. No.5823 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No.5823 of 2009 (O&M ) Date of Decision: October 12, 2009 Gulzar Singh and others ...........Petitioners Versus Karaj Singh ..........Respondent Coram: Hon'ble Mrs.Justice Sabina Present: Mr.Sukhbir Singh,Advocate for the petitioner, -- Sabina, J. (oral) Plaitniff-Karaj Singh filed a suit for permanent injunction restraining the defendants from encroaching upon and also creating hindrance for ingress and egress of the plaintiffs to his fields through passage bearing Khasra No.98. The suit of the plaintiff was decreed by the Civil Judge (Junior Division) Ajnala vide judgment and decree dated 17.1.2006. Appellants-defendants had failed to lead any evidence in support of their case. While dealing with issue No.1 in para 8 of the judgment, the learned trial court held as under:- “To learned counsel for the plaintiff has also referred to the revenue record in jamabandi Ex.P1 for the year 1994-95 and Khasra girdwaries for the period from sauni-1995 till Hari-1998 C.R. No.5823 of 2009 (O&M) 2 in which suit property is shown as gair mumkin rasta. It is admitted by defendants in the written statement that a general passage leading from village Kakar to village Talle abuts the agricultural land of parties to suit. According to plaintiff, it is this passage which is in disputes. For the purpose plaintiff has testified on before the court as PW2 and also has examined PW1 in the purpose. Their statements have not been controverted by defendants through any oral or documentary evidence. Defendants though alleged in their written statement that another passage leads to the agricultural land of plaintiff but they have relied in proving such contention on file. From the uncontroverted testimonies of PW1 and PW2 and from contents of documents Ex.P1 and Ex.P2, I find that suit property bearing killa no. 98 owned by gram panchayat and is a gair mumkin passage then this suit/property vests in gram panchayat and is general passage and plaintiff when is resident of village and when suit property leads to his agricultural land defendants have no right to hinger plaintiff from using it for the purpose nor they have right to encroach upon the suit property. Consequently, this issue is denied in favour of plaintiff and against defendants. “ Appellants filed an appeal against the judgment and decree passed by the trial Court along with an application under Section 5 of the Limitation Act, 1963, (for short `the Act') seeking condonation of delay in filing the appeal. Vide the impugned order dated 4.7.2008, the application under Section 5 of the Act was dismissed and consequently, the appeal was dismissed being time barred. Hence the present revision petition. C.R. No.5823 of 2009 (O&M) 3 After hearing the learned counsel for the petitioners, I am of the opinion that the instant petition is devoid of any merit. The judgment and decree were passed by the trial Court on 17.1.2006. The appeal challenging the said judgment and decree was,however, filed in September,2006. The case of the petitioners was that the mother of petitioner No.1 Gulzar Singh had died on 2.12.2005 and,thereafter, his wife remained under medical treatment. Petitioners led their evidence in support of their pleas. It has been observed in the impugned order that AW1 Dr.Kamaldeep Singh had deposed that he had treated the wife of the petitioner on 4.1.2006, 24.1.2006 and 8.2.2006. Thus, there was no medical evidence on record to the effect that the wife of the applicant had remained under treatment after 8.2.2006, whereas, the appeal was filed in September,2006. The sons of petitioner No.1 Gulzar Singh i.e. Swinder Singh, petitioner No.2 and Kulwinder Singh, petitioner No.3 also did not make any effort to file the appeal within the period of limitation. Even during trial, petitioners had failed to lead any evidence and the trial court held that the petitioners could not encroach upon the gair mumkin passage bearing Khasra No. 98 which was owned by Gram Panchayat. Petitioners had, thus, failed to establish that the delay in filing the appeal was not intentional and deliberate. I am conscious of the fact that a liberal approach is required to be taken by the Court while dealing with application under Section 5 of the Act, however, in the present case, the petitioners have failed to establish that they had any reasonable cause due to which they could not file the appeal within the period of limitation. Keeping in view the totality of circumstances in mind, no ground for interference is made out as the impugned order does not suffer from C.R. No.5823 of 2009 (O&M) 4 any material illegality or irregularity which may warrant interference in exercise of revisional jurisdiction under Article 227 of the Constitution of India. Dismissed ( Sabina ) Judge October 12, 2009 arya