RSA No.5115 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.5115 of 2010 (O & M) Date of Decision: 11.02.2011 Hari Chand ……Appellant Versus Shakuntla Devi and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Rakesh Bakshi, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.15080-C of 2010 Allowed as prayed for. CM No.15081-C of 2010 Heard. This is application for condonation of delay of 170 days in filing the appeal. Ground for seeking condonation of delay is mentioned in paragraph 2 of the application which is reproduced hereunder:- “ That the applicants/appellants could not contact their counsel for some days, meanwhile they received information that the impugned award has been passed and when they contacted their counsel at the District Court, Jagadhri, then already the limitation period had expired. Then they immediately contacted the counsel at High Court. That this was the reason that the appeal is being filed with a delay of 170 days” RSA No.5115 of 2010 (O & M) - 2 - A bare perusal of the aforesaid averments made in the application reveals that no ground much less sufficient ground for condonation of delay of almost 6 months is made out. It is unbelieveable that the appellant could not contact his counsel for more than 8 months. First appeal filed by the appellant in the lower appellate Court was decided on 10.08.2009. The instant appeal was filed on 30.04.2010 i.e after 8 months and 20 days of the decision by the lower appellate Court. In these days of fast means of communication, even a fool will not believe that the appellant was not able to contact his counsel for more than 8 months. Even certified copies of judgment and decree of the lower appellate Court had been obtained in August 2009 itself. For the reasons aforesaid, I find no merit in the instant application which is accordingly dismissed. CM No.15082-C of 2010 This is application by appellant for condonation of delay of 124 days in re-filing the appeal. Heard. Except bald averment that Clerk of the counsel kept the appeal in some other files by mistake, there is no ground much less sufficient ground for condonation of delay of 124 days in re-filing the appeal. Accordingly, finding no merit in the instant application, the same is dismissed. Main Appeal. Since applications for condonation of delay in filing and re-filing the appeal have been dismissed, the appeal is liable to be RSA No.5115 of 2010 (O & M) - 3 - dismissed on this ground. However, even on merit the appellant cannot succeed. Hari Chand-plaintiff, having failed in both the Courts below, has filed the instant second appeal. Plaintiff-appellant filed suit against his father Lekh Ram and brothers Nasib Singh and Tejpal Singh. All the said three defendants have since died and are represented by respondents herein as their legal representatives. The plaintiff alleged that till the year 1996 the family was joint. Defendant No.1 transferred the ancestral land to his three sons (plaintiff and defendant Nos.2 and 3) to the extent of 1/4th share each vide judgment and decree dated 29.03.1997 and retained the remaining 1/4th for himself. However, the suit property mentioned in the plaint is still joint. Suit property is said to be 400 poplar and other trees standing in the agricultural land; mortgagee rights with respect to land mortgaged by Sh. Satish Kumar etc. vide registered mortgage deed dated 04.12.1995; house property purchased from Ramashwar Dass; and live stock consisting of 5 buffaloes; agricultural implements consisting of tractor (of which number is left blank) with trolley, tiller, harrow, razer, khera, Sugha and wheat thrashing machine, oil engine, cart and manure pit. Separate possession by partition along with permanent injunction was claimed for the same alleging that the aforesaid properties are still joint. It was pleaded that house from Rameshwar Dass was purchased by the father- defendant No.1 in favour of the youngest son defendant No.3 from RSA No.5115 of 2010 (O & M) - 4 - joint family fund. Same plea is regarding mortgage of land from Satish Kumar etc. Defendants controverted the plaint allegations. It was alleged that defendant No.1 partitioned the joint family property about 25 years ago and separated the plaintiff by giving his share. Subsequently, defendant No.1 suffered consent decree dated 29.03.1997 admitting the family partition. Since then every party has his own share and has no concern with the share of any other property. After separation, the plaintiff also purchased tractor, some land, plots, motorcycle etc. Defendant No.1 has purchased the property from his own earnings. Plaintiff has no concern with the same. Various other pleas were also raised. Learned Civil Judge (Junior Division), Yamuna Nagar at Jagadhri vide judgment and decree dated 02.06.2008 dismissed the plaintiff’s suit. First appeal preferred by plaintiff has been dismissed by learned Additional District Judge, Yamuna Nagar at Jagadhri vide judgment and decree dated 10.08.2009. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Petition for partition of the agricultural land had already been filed in revenue Court. Trees standing in the land would go with the partition of the agricultural land, as rightly observed by the Courts below. Learned counsel for the appellant contended that the partition petition has since been dismissed by the Revenue Court for non- prosecution. However, there is no material on record to substantiate RSA No.5115 of 2010 (O & M) - 5 - this contention nor any such plea has even been raised even in the grounds of instant second appeal as conceded by counsel for the appellant. Even otherwise, even if the partition petition has been dismissed by revenue Court for non-prosecution, even then partition of the agricultural land including trees standing therein can be affected by revenue Court and not by civil Court. As regards mortgagee rights in land mortgaged by Satish Kumar etc. and the house purchased from Rameshwar Dass, admittedly defendant No.3- Tejpal Singh since deceased was mortgagee and purchaser of the aforesaid land and house respectively as per mortgage deed and sale deed. There is nothing on record to depict that the said mortgage of land or purchase of house was done with joint family funds by defendant No.1. On the other hand, defendant No.3 was the mortgagee/purchaser of the land and house. Consequently, plaintiff has no concern therewith. As regards tractor, the plaintiff has not even mentioned the registration number of the tractor and consequently, no relief can be granted to the plaintiff. As regards other implements also, there is no cogent evidence on record to depict that the same were purchased by defendant No.1 from joint family funds. Same is the position of alleged 5 buffaloes. The plaintiff’s grievance in the suit is completely misconceived. The suit filed by the plaintiff is frivolous. The plaintiff has been rightly non-suited by the Courts below. He is pursuing frivolous litigation by filing the instant second appeal. Such frivolous litigation has to be curbed by imposing exemplary costs on the plaintiff-appellant. Finding of both the Courts below is against the plaintiff-appellant. The said finding is based on proper appreciation RSA No.5115 of 2010 (O & M) - 6 - of evidence and is fully justified by the evidence on record and is supported by cogent reasons. Concurrent finding recorded by both the Courts below is not shown to be perverse or illegal 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. The appeal is frivolous and meritless and is accordingly dismissed in limine with costs of Rs.10000/- to be deposited with the Registry of this Court within one month, failing which the case shall be listed for this purpose. (L. N. MITTAL) JUDGE 11.02.2011 A.kaundal