R.S.A. No. 245 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 245 of 2007 (O&M) Date of decision: 06.05.2009 Giri Raj @ Gaj Raj ....appellant versus M/s Saraswati Real Estate and Investment Pvt. Ltd. and another ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. I.K. Mehta, Sr. Advocate, with Mr. R.K. Dogra, Advocate, for the appellant. Mr. Adarsh Jain, Advocate, for respondent No. 1. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 721-C of 2007 This is an application under Section 151 of the Code of Civil Procedure, for condoning the delay of 329 days in refiling the appeal. It has been averred in the application, that the delay has occurred due to the lapse on the part of the office of the learned counsel for the applicant-appellant. In support of the application, the learned senior counsel for the R.S.A. No. 245 of 2007 (O&M) -2- applicant-appellant has placed reliance on the judgments of the Hon'ble Supreme Court in case of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, AIR 1987 SC 1353 and Commissioner, Nagar Parishad, Bhilwara Vs. Labour Court, Bhilwara and another, 2009(3) SCC 525. Notice of application was issued. The learned counsel appearing on behalf of the non- applicant/respondent does not oppose the application for condonation of delay. In view of the fact that the application is not opposed, the delay of 329 days in refiling the appeal is condoned. C.M. stands allowed. R.S.A. No. 245 of 2007 This regular second appeal is directed against the judgment and decree dated 22.8.2005 passed by the learned Courts below, decreeing the suit filed by the plaintiff/respondent, seeking declaration with consequential relief of permanent injunction, to challenge the ex parte decree dated 31.3.1992 passed in favour of the defendant/appellant, vide which the suit for possession by way of pre-emption was ordered to be decreed. The necessary facts to be noticed for disposal of the regular second appeal are: - That on 25.11.1988, by way of two separate sale deeds, Tilak Raj purchased land measuring 19 kanals i.e. 8 kanals and 11 kanals from Mehar Chand and Laxmi. On 1.6.1989, Tilak Raj sold 19 kanals of land to the plaintiff/respondent i.e. M/s Saraswati Real Estate and Investment R.S.A. No. 245 of 2007 (O&M) -3- Pvt. Ltd. After the sale deed was registered in favour of the plaintiff/respondent, the defendant/appellant herein, on 9.6.1989 filed a suit for possession by way of pre-emption seeking to pre-empt 8 kanals of land. The suit was decreed ex parte on 31.3.1992. It is the case of the defendant/appellant that in pursuance to the ex parte decree dated 31.3.1992, possession of the property in dispute was handed over to the defendant/appellant on 3.6.1992. The plaintiff/respondent being aggrieved by attempts of the defendant/appellant, to seek possession of the land, filed a suit for declaration with a consequential relief of permanent injunction to challenge the ex parte decree dated 31.3.1992. The learned Courts below on appreciation of evidence, have been pleased to set aside the ex parte decree, primarily on the ground that the plaintiff/respondent was not party to the decree, therefore, was prima facie not bound by the said decree. That the decree passed on admitted facts was against law, as the defendant/appellant could not claim superior right of pre-emption against other co-sharer i.e. Tilak Raj, as admittedly he had purchased the land by way of two sale deeds in the same khewat i.e. one for 8 kanals and other for 11 kanals. The learned counsel for the appellant contends that the appeal raises the following substantial questions of law: - "1. Whether the suit filed by the plaintiff/respondent was barred by limitation? 2. Whether the learned Courts below were justified in setting aside the judgment and decree passed by the learned trial Court by ignoring the fact that in pursuance to the decree, possession was handed over to R.S.A. No. 245 of 2007 (O&M) -4- the defendant/appellant?" The first substantial question of law does not arise for consideration in this appeal, for the reason that the question of limitation is a mixed question of law and fact, in absence of specific issue and permitting the parties to lead evidence thereon, it was not open to the defendant/appellant to raise this plea before the learned lower appellate Court. The pleadings in the plaint did not show that the suit was barred by limitation, as it was pleaded that the possession was with the plaintiff/respondent. Concurrent finding of fact has been recorded holding, that it was plaintiff/respondent, who was in possession of the property in dispute. In pursuance to the decree passed for joint possession, the defendant/appellant was only entitled to joint possession of the property, therefore, defendant/appellant never came in possession. The first substantial question of law, therefore, does not arise for consideration in this appeal. Even otherwise the cause of action arose to the plaintiff/respondent when possession was threatened. On second substantial question of law, the learned counsel for the appellant contends that once possession was handed over to the defendant/appellant in pursuance to the decree passed. The remedy with the plaintiff/respondent, was only to file objections under Order 21 Rule 101 of the Code of Civil Procedure, and not to file a separate suit. The suit filed was prima facie not maintainable. It was contended that judgment and decree passed by the learned Courts below, thus, deserves to be set aside. The plea of the learned senior counsel for the appellant cannot be accepted. Concurrent finding of fact has been recorded, holding that R.S.A. No. 245 of 2007 (O&M) -5- it was the plaintiff/respondent who was in possession of the property in dispute. Once the possession was not disturbed, it cannot be said that actual physical possession was handed over to defendant/appellant. The decree in favour of defendant/appellant was rightly set aside as in the facts and circumstances of the case defendant/appellant did not have any superior right of pre-emption, being co-sharer with Tilak Raj. The substantial questions of law raised are answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge May 06, 2009 R.S.