Regular Second Appeal No. 520 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 520 of 2010 Date of decision : May 27, 2010 Joga Singh ....Appellant versus Harbhajan Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. PS Dhaliwal, Advocate, for the appellant L.N. Mittal, J. (Oral) This is second appeal by Joga Singh defendant having remaining unsuccessful in both the courts below. Satbir Singh since deceased predecessor of respondents no. 1 to 4 along with Joginder Singh respondent no. 5 filed suit against appellant Joga Singh for possession of 32 kanals 10 marlas of land in suit alleging that plaintiff no. 1 has 7/12 share and plaintiff no. 2 has 1/4 share in joint land measuring 62 kanals 4 marlas. 1/6th share of Jagir Singh in the suit land was inherited by his widow and daughter. In view of decree for specific performance of agreement to sell entered into by Jagir Singh, sale deed was executed in favour of the plaintiffs on 9.10.2002 and as such plaintiff no. 2 has become owner of the entire share of widow and daughter of Jagir Singh. Khasra girdawari has been wrongly changed in favour of Regular Second Appeal No. 520 of 2010 -2- defendant on the basis of report no. 37 dated 20.9.2000 which is illegal. Defendant, therefore, has no right, title or interest in the suit property but taking benefit of the wrong khasra girdawari entry in his favour, the defendant entered into wrongful possession of the suit land. Accordingly, plaintiff sought possession of the suit land. Defendant, inter alia, pleaded that plaintiff no. 1 is grandson of Gurchand Singh alias Gurchandi whereas plaintiff no. 2 is son of said Gurchandi who also had another son Jagir Singh and daughter Baldev Kaur. Gurchandi was owner of 126 kanals 6 marlas of land. Plaintiff no. 2 fraudulently obtained two decrees in his favour on 30.8.19886 and 30.11.1993 regarding 64 kanals 2 marlas of land of his share. Remaining 62 kanals 4 marlas of land was divided into two shares i.e. in favour of Jangir Singh and his wife and daughter and the other share in favour of Gurchandi, Kako and Gurdev Kaur. Widow and daughter of Jangir Singh became exclusive owners of 32 kanals 10 marlas of land in suit and they executed general power of attorney regarding the suit land in favour of defendant. Learned Additional Civil Judge (Senior Division), Samana vide judgment and decree dated 5.3.2009 decreed the plaintiffs' suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Patiala vide judgment and decree dated 15.12.2009. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Perusal of the impugned judgments of the courts below reveals that the plaintiffs' evidence stood unrebutted. The defendant did not lead Regular Second Appeal No. 520 of 2010 -3- any evidence. The plaintiffs led documentary as well as oral evidence. The same was found sufficient to establish their claim. In fact, their claim was based on various earlier judgments and decrees of the courts. The defendant did not lead any evidence to depict that the said judgments and decrees were vitiated in any manner. Thus, suit of the plaintiffs was rightly decreed by the courts below. Learned counsel for the appellant vehemently contended that the defendant was granted only four opportunities for his evidence by the trial court and then the defendant's evidence was closed by court order and therefore, another opportunity should be granted to the defendant-appellant for leading his evidence. The contention could have been accepted had it been the true position. However, perusal of the record of the trial court reveals that initially evidence of the defendant was closed by order dated 18.7.2008 by the trial court after granting four opportunities to the defendant. However, this Court vide order dated 15.9.2008 passed in CR No. 4945 of 2008 preferred by defendant against trial court's order dated 18.7.2008, granted one more opportunity to the defendant for concluding his entire evidence on payment of Rs 5000/- as costs. Pursuant to the said order, trial court fixed the suit for 12.12.2008 for evidence of the defendant. On 12.12.2008, the defendant entered the witness box and tendered his affidavit of examination-in-chief but his cross-examination was deferred probably because advance copy of the affidavit of examination-in-chief was not supplied to the opposite counsel. Case was adjourned to 9.1.2009 for cross-examination of the defendant. On 9.1.2009 part cross-examination of the defendant was recorded and further cross-examination was deferred to 11.2.2009 on request of counsel for the plaintiff. However, on 11.2.2009, Regular Second Appeal No. 520 of 2010 -4- the defendant did not appear for his further cross-examination and on application moved on his behalf another adjournment was granted by the trial court and the case was adjourned to 20.2.2009 for cross-examination of the defendant. However, even on 20.2.2009, the defendant did not come present for his further cross-examination and therefore, the trial court again closed evidence of the defendant by court order. From the aforesaid sequence of the events, it becomes manifest that defendant is not entitled to any more opportunity for his evidence. Earlier he was granted indulgence by this Court and he was granted one more opportunity to lead evidence but the defendant after availing two opportunities for his remaining cross- examination did not come present and therefore, the trial court rightly closed evidence of the defendant by court order because pursuant to order dated 15.9.2008 passed by this Court ,only one opportunity was required to be granted to the defendant for his evidence. No justification for granting any other opportunity to the defendant for leading evidence is, thus, made out. Since the defendant did not appear for his further cross-examination, his examination-in-chief can also not be taken into consideration. It is a case of no evidence on behalf of defendant-appellant whereas plaintiffs led sufficient reliable documentary and oral evidence which goes unrebutted and is sufficient to prove their case. There is no infirmity much less illegality in the judgments of the courts below. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine. ( L.N. Mittal ) May 27, 2010 Judge 'dalbir' Regular Second Appeal No. 520 of 2010 -5-