RSA No. 1619 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1619 of 2010 Date of Decision: 10.05.2011 Subhash Chand and another ... Appellants Versus Bharat Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE L.N.MITTAL Present: Mr. Sachin Mittal, Advocate for the appellants. **** L.N.MITTAL, J (ORAL). CM No. 4825-C-2010 Allowed as prayed for. CM No. 4826-C-2010 This is application by appellants for condonation of delay of 1 year 4 months 22 days in refiling the appeal. It is alleged in the application that appeal on behalf of appellant No. 2 was filed through her attorney appellant No. 1, but copy of power of attorney was not available and, therefore, objection raised by the registry could not be removed. Intimation sent by the counsel was not recieved by the appellants. However, when appellants contacted the counsel to enquire about the fate of the case, then they were told to remove the objection and thereupon the objection was removed and appeal was re-filed. I have heard learned counsel for the appellants and perused the case file. RSA No. 1619 of 2010 -2- Learned counsel for the appellants reiterated the averments made in the application. I have carefully considered the same. Even if averments made in the application are taken at face value, the same are not sufficient to condone the long delay of 1 year 4 months 22 days in refiling the appeal. The averments made are vague and general. Moreover, the appellants would not have remained silent without making enquiry for almost one and half years about the fate of the case. The application is also not accompanied by any affidavit. Keeping in view the aforesaid, I find no sufficient ground for condoning the long delay in refiling the appeal. If such long delay is condoned without sufficient ground, it would amount to repeal of the law of limitation which cannot be done. The application is, therefore, dismissed. RSA No. 1619 of 2010 Since delay in refiling the appeal has not been condoned, the appeal is liable to be dismissed on this ground. However, even on merits, the appellants cannot succeed. By this common judgment, I am disposing of 2 appeals i.e. RSA No. 1619 of 2010 titled Subash Chand and another Versus Bharat Singh others and RSA No. 698 of 2010 titled Subhash Chand and another Versus Phulla Singh and others. RSA No. 1619 of 2010 has arisen out of civil suit No. 125 of 2006 filed by the appellants whereas RSA No. 698 of 2010 has arisen out of civil suit No. 216 of 2002 filed by Phulla Singh etc. respondents No. 1 to 15 of the said appeal. Both the said suits were disposed of by common judgment dated 23.08.2006 by learned Civil Judge (Senior Division), Karnal. Suit filed by the appellants was dismissed RSA No. 1619 of 2010 -3- whereas suit filed by Phulla Singh etc. was decreed. First appeals preferred in both the suits were dismissed by learned Additional District Judge, Karnal vide common judgment dated 28.03.2008. Consequently, both the second appeals are also being disposed of by this common judgment. Facts are being taken from civil suit No. 216 of 2002 filed by Phulla Singh etc. against both the appellants (defendants No. 1 and 2) and Bharat Singh and Jagat Ram (defendants No. 3 and 4). Plaintiffs in that suit alleged that suit land measuring 10 bighas 3 biswas being 1/6 the share of the total land measuring 60 bighas 18 biswas was owned and possessed by Hargulal-father of the appellants. He mortgaged his share with possession in favour of Bharat Singh and Jagat Ram, who have been arrayed as defendants No. 3 and 4, vide mortgage deed dated 16.06.1969 registered on 17.06.1969 for Rs. 3,500/-. Subsequently, Hargulal sold his share to Phulla Singh-plaintiff No. 1, Manu Ram and Harkesh since deceased (predecessors-in-interest of remaining plaintiffs No. 2 to 15) vide sale deed dated 16.06.1976. Thereafter, vendees got redeemed the mortgage by mortgage money of Rs.3,500/- to the mortgagees and, accordingly, vendees became owners in possession of the suit land. Now plaintiffs are owners in possession of the suit land. However, revenue record continued to show Bharat Singh and Jagat Ram (defendants No. 3 and 4) as mortgagees. Hargulal has since died. Defendants No. 1 and 2 (appellants) are his legal heirs. They have no right, title or interest in the suit land. Accordingly, plaintiffs sought declaration that they are owners in possession of the suit land and revenue entries to the contrary are liable to be corrected and defendants have no right, title or interest in the suit land. Relief of permanent injunction was also prayed. RSA No. 1619 of 2010 -4- Defendants No. 3 and 4 admitted the claim of the plaintiffs. Defendants No. 1 and 2 contested the suit. They admitted facturm of mortgage of the suit land by their father and predecessor in favour of defendants No. 3 and 4, but pleaded that mortage was for Rs.1,500/-. Defendants No. 1 and 2 denied the factum of sale of the suit land by their father in favour of plaintiff No. 1 and predecessors of other plaintiffs. In civil suit No. 125 of 2006 filed by the appellants, they pleaded that the mortgage was got redeemed by their father but the mortgagees continued to be in possession of the suit land. Factum of sale in favour of Phulla Singh etc. was denied. Accordingly, appellants sought relief of possession of the suit land, besides declaration that sale deed dated 16.06.1976 regarding the suit land is null and void. Phulla Singh etc.(defendants No. 3 to 17) in that suit controverted the version of the appellants and reiterated the version taken by them in their own suit. As stated above, suit filed by the appellants was dismissed by both the courts below whereas suit filed by phulla Singh etc. was decreed. Feeling aggrieved, appellants had filed the instant second appeals. I have heard learned counsel for the appellants and perused the case files. Version of the appellants that the mortgage was got redeemed is inherently and intrinsically unacceptable. The appellants have even not alleged as to when the mortgage was got redeemed. They have also not alleged as to whether the mortgage was got redeemed by them or by their father Hargulal. There is also no document to depict that mortgage was infact got redeemed by the appellants or their father Hargulal. In addition to RSA No. 1619 of 2010 -5- it, if the mortgage had been got redeemed by the appellants or their father, they would have simultaneously taken possession of the suit land from the mortgagees. Admittedly, appellants or their father did not take possession of the suit land. Consequently, version of redemption of mortgage pleaded by the appellants is completely unacceptable. On the other hand, Hargulal executed the sale deed of the suit land in favour of Phulla Singh etc. The sale deed was regitered and it was never challenged by anybody. Appellants have filed their suit on 04.03.2004 i.e. almost 28 years after the execution of sale deed. Appellants' father Hargulal who executed the sale deed never challenged it. On the contrary, mortgagees have also admitted the case of vendees Phulla Singh etc. by admitting that mortgage was got redeemed by the said vendees and possession was delivered by the mortgagees to the vendees. Admittedly, the appellants are out of possession . They filed their suit almost 2 years after vendees Phulla Singh etc. had filed their suit. If the appellants or their father had got redeemed the mortgage, they would not have remained silent wihtout taking any step for recovery of possession of the suit land. In fact, they would not have paid the mortgage money without simultaneously taking back the possession of the suit land from the mortgagees. Phulla Singh etc. have proved that the sale deed was executed in their favour by appellants' father Hargulal. There is concurrent finding in favour of Phulla Singh etc. The said finding is based on evidence and is neither shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not call for intereference in exercise of second appellate jurisdiction. No question of law much less substantial question of law arises for adjudication in the RSA No. 1619 of 2010 -6- instant second appeal. Both the appeals are devoid of merit and are accordingly dismissed in limine. (L.N.MITTAL) JUDGE May 10, 2011 divyanshi