R.S.A. No. 165 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 165 of 2009 (O&M) Date of decision: 20.03.2009 Surinder Singh ....Appellant Versus Ram Pal and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Vinod S. Bhardwaj, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) C.M. No. 385-C of 2009 This is an application under Section 5 of the Limitation Act for condoning the delay of four days in filing the accompanying appeal. For the reasons stated in the application, C.M. is allowed and the delay of four days in filing the appeal is condoned. R.S.A. No. 165 of 2009 This order shall dispose of R.S.A. No. 165 of 2009 titled Surinder Singh Vs. Ram Pal and others and R.S.A. No. 269 of 2009 titled Kartar Singh Vs. Ram Pal and others, as common questions of law and fact are involved. For brevity sake, facts are being taken from R.S.A. No. 165 of R.S.A. No. 165 of 2009 (O&M) -2- 2009. This regular second appeal is directed against the judgments and decree dated 28.9.2005 and 28.5.2008 passed by the learned Courts below, vide which the suit for possession of agricultural land filed by the plaintiff/appellant stands dismissed. The plaintiff brought a suit for possession on the basis of lease deed said to have been executed by Mahant Manmohan Dass qua land belonging to Idol Krishanji Mandir Bawnaji Bala, Jagadhri, District Yamuna Nagar. The plaintiff/appellant claimed that by way of registered lease deed, the land in dispute was agreed to be leased to the plaintiff/appellant for a period of 99 years, and the lease money for a period of 40 years was paid to Mahant at the time of execution of lease. The learned Courts below by way of concurrent finding of fact have held that the lease was not validly executed, as no possession was handed over, and also that there was no legal necessity with the Mahant to execute the lease for 99 years. Consequently, it was held that the plaintiff/appellant was not entitled to possession on the basis of lease deed said to have been executed in favour of the plaintiff/appellant. Along with the suit, the plaintiff had also challenged the lease in favour of the defendants, which was said to be for a period of 42 years, which was claimed to be bad and not permissible in law. Though the lessors of lease deed dated 1.1.1998 for 42 years were impleaded as party, but the suit against the said lessors was ordered to be dismissed under Order 9 Rule 2 CPC for non-service of summons/non-compliance of the orders passed by the Court. R.S.A. No. 165 of 2009 (O&M) -3- The plaintiff/appellant did not choose to invoke the provisions of Order 9 Rule 4 CPC to get the said order set aside, and allowed it to attain finality. Thus, issue No. 3 i.e. whether the lease deed dated 1.1.1998 was liable to be set aside, was decided against the plaintiff/appellant. The learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law: - “1. Whether uncontroverted and undisputed lease deed could be disbelieved? 2. Whether the lease deed executed subsequent in point of time could be given precedence over the lease executed prior to it?” It may be noticed here that though the lease deed was registered, the plaintiff did not prove the same by examining attesting witnesses or the executant of the lease deed and placed on record the lease as Ex. P-1. Be that as it may, it would not be material as the learned Courts below have rejected the lease to be bad in law for want of handing over possession and also that it was without legal necessity, therefore, not enforceable in law. The first substantial question of law framed is answered against the plaintiff/appellant, and it is held that no fault can be found with the finding of the learned Courts below. On second substantial question of law, the learned counsel for the appellant contends that once it was proved on record that the lease deed in favour of the appellant/plaintiff was prior in time, the subsequent R.S.A. No. 165 of 2009 (O&M) -4- lease deed dated 1.1.1998 was liable to be rejected, as after execution of lease deed in favour of the plaintiff, the lessors did not have any right to lease out the property to any third party. However, this plea also cannot be considered nor question of law arises in this appeal, in view of the fact that the challenge to lease dated 1.1.1998 has been negatived for the reason that the suit against the lessors of the lease deed dated 1.1.1998 was dismissed under Order 9 Rule 2 CPC. The learned Courts below had no alternative, but to decide issue No. 3 against the appellant/plaintiff. The second substantial question of law does not arise for consideration, in this appeal. No merit. Dismissed in limine. (Vinod K. Sharma) Judge March 20, 2009 R.S.