442 r L el Reqular Second Appeal Noe 1278 of 2010 lOSMI IN THE HIGH COURT FOR THE STATES OF PUNJAB 8 HARYANA AT CHANDIGARH eee Date of Decision April 6 2011 1 1 Q 0 Reqular Second Aopeal No 1278 of 2010 lOaMle 0 I Gurdev Singh Appellant C5 I VERSUS Z m Sudagar Singh Respondent IZ I CORAM HONBLE MRJUSTICE MOHINDER PAL Z 0 le Whether Reportersof Locai papers may be allowed to see the judgment 7 2 To be referred to the Reportersor not7 W2 Z 3a Whether the judgmentshouid be reportedin the Digest7 Qe Presentl MrSachin JainAdvocate for the appellant Mr LiaqatAli Advocate forthe respondent MOHINDER PAL J The defendantaappellant IS in second appealaggrieved against the judgmentsand decrees passed by both the Courts below whereby the suit filed by the plaintiferespondent for KUMAR SURESH SHAM LAL 2012.11.17 13: 28 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 443 4 m2 Reqular Second Apoeal Noe 1278 of 2010 108M1n possessionof the houselproperty bearing No 1673 measuring aboUt 1 Kanal 3 Marlas as shown in red colour in the site plan attached with the suit lereinafter referred to as the disputed property was decreed 1 The claim of the plaintifespondent SaudagarSingh was that the disputedproperty was earlier in possessionof his 0 C0 Saudagar SinghsJ father Amrik Singh and after his Amrik I C5 Singh death in his 6plaintiffrespondents9 possesslone I DefendantappellantGurdev Singh was a Iabourer and domestic Z servant at the farm of the plaintiffas well his father The Sales Departmenthad aliotted the disputedproperty to Amrik Singh C father of the plaintifrespondent on the basis of his Iong I possession over the same and ConveyanceDeedlRegisteredSale 0 Z Deed had also been executed ir his 1mrik Singl favour The 0 disputed property had been given to the plaintifespondent as a Iicencee On the other hand the claim of the defendant 7 Z appellant was that he was in possessionofthe disputedpropeny tl for the iast more than 20 years and his possession was oper hostile and continuous to the knowledge of the Plajntiff respondentas well as his father Amrik Singh since deceasec It was denied by the defendantappellanthat he was a Iicencee of the plaintiff or his father He further denied having ever remained as a servant of the plaintiffor his father The triaICourt after framing issues arisingout of the pleadingsof the parties and recording their evidence decreed KUMAR SURESH SHAM LAL 2012.11.17 13: 28 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 444 rl m3 Reqular Second Aooeal Noe 1278 of 2010 OSMl the suit filed by the plaintiffrespondent In fact the defendantm appellanthad also filed a sOit for permanentinjunctionI ll respect of the disputedproperty against the plaintifappellant and both the suits were consolidated and decided togetherby the trial Court Whereas the suit filed by the lll respectof the disputed property as mentioned above was decreed 0 0 by the trial Court the suit filed by the defendantappellantwas I dismissed The appeal preferred by the C5 I againstthe judgmentand decree passed by the trial Court in favour of the plaintifespondent was dismissed by the Iower Z appellateCourt The findings recorded by both the Courts below arethe findingsof fact It could notbe pointed out by the I Iearned counsel for the appellant that such findings are based 0 Z on misreadingof evidence or that material evidence has not been taken into consideration m Exhibit P 3 is the Conveya nce Deed Itl respectof the 7 Z disputedproperty and its perusalshows that Amrik Singh father of Ll the was its owner The ConveyanceDeed Exhibit P has been attested by Tehsildar Nakodar Exhibit PA is the entry of mutation Ill respectof the disputedpropertyin favour of SaudagarSingh This mutations entry Exhibit PAl was registered at the office of Sub Registrar vide endorsement NoPW31A In fact on the basis of possession Amrik Singh father of plaintifespondent SaudagarSingh had applied to the Tehsildar Sales Nakodar for KUMAR SURESH SHAM LAL 2012.11.17 13: 28 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 445 1 1 4 Reqular Second Apoeal No278 of 2010 1OSMI transfer of the disputedhouse and the Tehsildar Sales Nakodar had ordered transfer ofthe disputed house in favour ofAmrik Singhvide order dated 275 1992 The defendantappellanthad challenged the transfer m of house 1 disputedproperty before the revenue authorities and r he Iost his case upto the Financial Commissioner Revenue The 0 0 prayerof the defendantappellantagainst the transfer of the I C5 disputedproperty in favour of Amrik Singh father of the plaintif I respondent was finallydeclined by the Financial Commissioner Revenue Punjab vide order dated 1671999 Exhibit P8 Thus Z the pleaof the defendantappellantwhich he had taken before the CC Courtsbelow that the ConveyanceDeed Exhibit P3I was a fake I document stands negativedon recorde Z The defendantappellantfailed to prove on record as 00 to how he came into possessionof the disputed property It fortifies the definite stand of the plaintiffrespondentthat the ve Z defendantappellanthad been inducted as a Iicencee on the disputed C property as he defendan was a domestic helplfarm Iabour of Amrik Slngh father of the Even Sodhi Singh Vl31 a witness of the defendantappeliant in his crosse examination admitted that the defendantopellant had been workingwith Amrik Singh father of the plaintifespondent in his fields for 20125years This demolishes the stand of the that he had neither worked under Amrik Singh nor was inducted as alicencee on the disputedhouse by KUMAR SURESH SHAM LAL 2012.11.17 13: 28 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 4 446 el Reqular Second Appeal No 1278 of 2010 lOaMln Amrik Singh During the course of argumentsIearned counsel for the defendantappellant Iaid much stress on the point that the Iower appellateCourt while dismissing the appeal filed by the 1 against the judgment and decree passedby Ct the tria1 Court did not decide the application filed by the 0 0 under Order 41 RuIe 27 of the Code of Civil I Procedure herelnafter referred to as the Code and on this C9 I ground accordingto the Iearned counsel this matter requiresto be remanded to the Iower appellateCourt for deciding the said Z application of the defendaneappellantfiled for Ieadingadditional evidence In support of this contention Iearned counsel for the I placedreliance on the authorities of the Honble Z SupremeCourt reported as Hakam Sinqh Vse State of Harvana CO and others 2008 4I RR Civill 422 and Jatinder Singh and another minor throuqh mother Vse Mehar Sinqh and others a7 Z 2009 C11 ReCaR CCivill 253 In both these cases the Honble tl SupremeCourt held that it is the dutyof the Court to deal with the application filed by a party for Ieadingadditional evidence on merits There can be no disputewith what has been held by the Honble SupremeCourt Ill Hakam Singhs case csupral and Jatinder Singhs case csupral However in this case vide order dated 52010 passed by this Court when Iearned counsel for the had argued that the Iower appellateCourt had not decided the application filed by him KUMAR SURESH SHAM LAL 2012.11.17 13: 28 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 447 1 e Reqular Second Appeal Noe 1278 of 2010 O8M1e under Order 41 Rule 27 of the Code for Ieadingadditional evidence this Court had summoned record of the Iower appellate Court A perusalof the record shows that the applicationfor Ieadingadditional evidence was Oled by the 1 defendaotappellantbefore the Iower appellateCourt on 262009 whereas the appeal before the iower appellateCourt by the 0 0 defendantappellant was filed on 3A2006 ie a Iittle Iess than I three years after the filing of the appeal This delay in filing 0 I the application under Order 41 Rule 27 of the Code for Z productionof additional evidence before the Iower appellateCourt shows that the documents which the defendant wanted to produce by way of additional evidence were within his knowledge I and he could pray for bringingthe same on record either at r Z the time of filing of the appeal before the Iower appellateCourt t or duringthe pendencyof appeal for a periodof about three vm years beforethe Iower appellateCourt It appears that the said Z application was filed by the for Ieading additional evidence before the Iower appellateCourt when the appealwas Iikelyto be heard by that Court The appeal of the defendant was decided by the Iower appeliateCourt on 14 52009 whereas the applicationfor Ieadingadditional evidence as men0onedabove was filed on 262009 It appears that the only purpose of filing this applicationwas to delaydecision in the appeal Besides the counselfor the defendantopellant before the Iower appellateCourt did not address any arguments on the KUMAR SURESH SHAM LAL 2012.11.17 13: 28 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 448 e7 Reclular Second Aopeal Noe 1278 of 2010 OSMla applicationfiled by him under Order 41 RuIe 27 of the Code otherwise there was no reason for the Iower appellateCourt not to deal with those arguments at the time of decidingthe appeal fiied before it by the defendantappellant It Ieads to the only conclusion i that the iearned counsei for the defendantopellant before the Ct Iower appellateCourt did not press the application filed under 0 0 Order 41 Rule 27 of the Code for Ieadingadditional evidence A I C5 party cannot be allowed to proiong decision in a suit by I adoptingdilly daliying tactics As notice above the defendante Z appellant failed to Iead any evidence Ill supportof his case 2 whereas the plaintifespondent proved his case by Ieading lr documentaryas well as oral evidence The defendantappeliant I failed to bring on record any document showing as to how he 0 Z came into possessionof the disputed property Even the witness of 00 the defendantappellantnamely Sodhi Singh DW31 in his cross examination admitted that the defendantappellant had been wm Z working with Amrik Singh father of the piaintifespondent in his Qm fields for 20125 years therebyfortifying the claim of the plaintiffrespondent that he was working as a farm help with the plaintiffappellantand his olaintif appellants father Amrik Singh and was inducted as a Iicencee on the disputed propert51No relief under the circumstances could be granted to the defendantopellant thereby restraining the plaintiffrespondentowner of the disputedproperty from interfering in the possessionof the defendantopellant over the disputed KUMAR SURESH SHAM LAL 2012.11.17 13: 28 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 449 9 1 1 e8 P Reqular Second Apoeal Noe 1278 of 2010 l0SMI0 propertYa Keepingin view the facts and circumstances of the cas8 discussed above the ratio as enunciated by the Honble SupremeCourt Ilrl Hakam Singhs case supral and Jatinder Singhs case swpral IS of no heipto the 1 In view of the above I do not find any patent illegality Ct or irregularity Ill the findings of fact recorded by both the 0 0 Courts below which may give rise to any substantial question of 1 I45 Iaw in the present appeal I Hence the present appealis dismissed 1 1 e C PALI 4 n r JUDGE I April C2 2011 ak 1 Z CO Z 11 rl l IoAoy64u lvd f O 00 e tt KUMAR SURESH SHAM LAL 2012.11.17 13: 28 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document