RSA No. 53 of 2009 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 53 of 2009 Date of Decision: 6.8.2009 Prem Singh ......Appellant Versus Attar Chand and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Hari Om Attri, Advocate, for the appellant. HEMANT GUPTA, J. (Oral). Defendant No.1 is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit for declaration challenging lease deed dated 21.8.1991 for a period of 99 years was found to be ineffective and void qua the interest of the plaintiff. One Naraindass was the owner of the suit land, including land measuring 16 kanals, subject matter of the lease in favour of defendant No.1. He suffered a consent decree in favour of the present plaintiff, his son on 27.7.1990 to the effect that he will not create any encumbrance on the aforesaid land measuring 16 kanals. Though there was consent decree, but Naraindass still executed a lease deed in favour of the present appellant on 21.8.1991. The challenge in the suit was to the aforesaid lease deed. RSA No. 53 of 2009 (2) None of the defendants contested the suit but the learned trial Court dismissed the same on the ground that the condition in the consent decree dated 27.7.1990 that the defendant will not create any encumbrance on the suit property, is void as an absolute owner cannot be deprived to deal with the property in the manner he wishes to do so. However, in appeal, the judgment and decree passed by the learned first trial Court has been set aside. It has been found that the father of defendant No.1 Sultan Singh is a witness to the compromise Exhibit D1. dated 26.7.1990, which led to the decree Exhibit P.1. It has been further found that there is no law that such a rider cannot be imposed when such rider is valid in law. Learned counsel for the appellant has pointed out that in fact, written statement was filed by the said defendant before the trial Court, but it is thereafter, that he has not put in appearance and consequently, the ex- parte decree was passed. In appeal, the service upon the defendants was dispensed with for the reason that the appellant was proceeded exparte in the trial Court, therefore, the judgment of the Appellate Court is not sustainable. It is further contended that there cannot be any embargo on the right of the absolute owner to deal with his property in the manner he likes. Therefore, the finding recorded by the learned first Appellate Court is unjustified. The appellant has not led any evidence in support of plea taken in the written statement. In the absence of evidence, the findings recorded can be challenged on merits alone. The findings recorded by the first Appellate Court are possible findings and that the appellant has not suffered any prejudice after service upon him was dispensed with. The issue raised is legal, there being no dispute about the facts. RSA No. 53 of 2009 (3) Learned counsel for the appellant, could not refer to any provisions of law that an owner cannot voluntary agree to create any encumbrance on his property. The statement of defendant No.2, which has been accepted by the Courts, will act as an estoppel against the said defendant and thus, he is deprived from leasing out the property in favour of the present appellant on 21.8.1991. Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 06-08-2009 ds