REGULAR SECOND APPEAL No.1048 OF 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1048 OF 2011(O&M) DATE OF DECISION: 4 th MARCH, 2011 Subhash .... Appellant Versus Bhagwati & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Shailender Sharma, Advocate for Mr. B. S. Tewatia, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) CM No.2937-C of 2011: Allowed as prayed for. CM No.2938-C of 2011: The application is allowed and Annexures A-1 to A-3 are taken on record, subject to all just exceptions. CM No.2939-C of 2011 and RSA No.1048 of 2011 This is second appeal by defendant No.1 Subhash having failed in both the courts below. Suit was filed by respondents No.1 to 5/plaintiffs against defendant No.1/appellant and against proform respondents No.6 to 13 as defendants No.2 to 9 for partition of the suit property. Vide judgment and preliminary decree dated 31.01.2005, suit was decreed and shares of the parties in the suit property were determined. Plaintiffs filed application for REGULAR SECOND APPEAL No.1048 OF 2011(O&M) -2- passing of final decree. Defendants alleged that defendants No.2 to 9 were not represented before passing of judgment and preliminary decree dated 31.01.2005. However, the said plea was discarded by the trial court vide order dated 07.08.2006. Thereafter Halka Patwari was appointed as Local Commissioner to propose mode of partition. The Local Commissioner submitted report Annexure A-1 proposing the mode of partition. No objections were preferred against the said report. Accordingly, learned trial court i.e. learned Additional Civil Judge (Senior Division), Palwal vide judgment and final decree dated 08.04.2009 accepted the report of Local Commissioner and passed final decree of partition as per mode of partition proposed by the Local Commissioner. First appeal preferred by defendant No.1 has been dismissed by learned Additional District Judge, Palwal vide judgment and decree dated 27.11.2010. Feeling aggrieved, defendant No.1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. At the outset, it may be mentioned that along with instant second appeal, appellant has moved CM No.2939-C of 2011 for additional evidence to produce in evidence certain affidavits (Annexure A-3 collectively). The said affidavits have been affirmed to the effect that no demarcation of the suit land was conducted on 10.04.2008 and that their signatures had been obtained only for the purpose that Girdawar had inspected the spot. These affidavits cannot be taken by way of additional evidence because deponents of the affidavits have to be examined as witnesses to offer opportunity of cross- examination to the opposite party if additional evidence of some persons is to be produced. Mere tendering of affidavits without examining the dependents REGULAR SECOND APPEAL No.1048 OF 2011(O&M) -3- as witnesses and without offering them for cross-examination by the opposite party, cannot be permitted. Even otherwise, the application is completely misconceived because no objection was preferred by defendant No.1 appellant or by any other party against the report of the Local Commissioner. Consequently additional evidence to discard the report of Local Commissioner cannot be permitted. The application is, therefore, dismissed. For the same reasons as recorded in the preceding paragraph, contention of counsel for the appellant that application Annexure A-2 moved by the appellant in the lower appellate court for the same additional evidence was not decided by the lower appellate court, cannot be accepted because same proposed additional evidence could not be admitted. Learned counsel for the appellant vehemently contended that Local Commissioner did not make any demarcation at the spot. The contention is misconceived and devoid of force. Local Commissioner was not required to make demarcation of the suit property at the spot because identity or location of the suit property is not in dispute. On the contrary, at the risk of repetition, it has to be highlighted that no objection was preferred by the parties against the report of the Local Commissioner. Consequently, the courts below were left with no option but to accept the report of the Local Commissioner, if it was found to be reasonable and proper and was not vitiated in any manner and did not suffer from any infirmity. It is thus apparent that the instant second appeal is completely frivolous and misconceived and meritless. Reason for dragging the matter by the appellant by way of first and second appeals is not far to seek. As per report of Local Commissioner, defendant No.1-appellant is in possession of 148 Square Yards area in excess of his share in the suit property. Defendant REGULAR SECOND APPEAL No.1048 OF 2011(O&M) -4- No.1-appellant by preferring first and second appeals simply wanted to perpetuate his possession on the said excess area. For the reasons aforesaid, I find no merit in the instant second appeal. There is no illegality or perversity in judgments of the courts below so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 4th March, 2011 'raj'