R.S.A. No. 1744 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1744 of 2009 (O&M) Date of Decision : 27.4.2009 Rama Nand .......... Appellant Versus Chhuttan Lal ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Rajesh Lamba, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 5092-C of 2009 This is an application under Section 5 of the Limitation Act, 1963, for condoning the delay of 124 days, in filing the appeal. The appellant seeks the condonation of delay of 124 days, in filing the appeal primarily on the ground, that though the appeal was filed within time, and it was only on account of non-signing of the appeal, it was returned, and thereafter refiled. The fault, therefore, is prima facie of the counsel. It is well settled, that party is not to suffer, for the fault of the counsel. Consequently, this application is allowed and delay of 124 days in filing the appeal is condoned. C.M. stands disposed of. R.S.A. No. 1744 of 2009 2 C.M. No. 5094-C of 2009 This is an application under Section 149 of the Code of Civil Procedure, for condoning the delay in making good the Court fee. The learned counsel for the appellant contends, that due to inadvertence, proper court fee was not affixed on the decree-sheet. For the reasons stated in the application, the delay in making good the court fees is ordered to be condoned. C.M. stands allowed. R.S.A. No. 1744 of 2009 This regular second appeal is directed against the judgment and decree dated 13.8.2008, passed by the learned Courts below, vide which suit filed by the plaintiff / respondent, for mandatory injunction, and in the alternative for possession, stands decreed. The plaintiff / respondent, who is father of the defendant / appellant, filed a suit for mandatory injunction, seeking possession of the property in dispute on the plea, that the defendant / appellant was inducted as licencee in the property in dispute, being his son. After the licence was revoked he has not handed back the possession, thus, possession was sought. It is not in dispute, that the plaintiff was the registered owner of the property in dispute, but defence taken by the defendant was, that he was residing in the house in dispute, as it fell to his share, in a family settlement arrived at between the parties in the year 1982. It was the case of the defendant / respondent, that the plaintiff R.S.A. No. 1744 of 2009 3 had acquired this property from the joint family funds, therefore, the property was joint Hindu family property and not that of plaintiff as pleaded. The learned Courts below on appreciation of evidence have recorded a concurrent finding of fact, that defendant / respondent has failed to prove, that the property in dispute was joint Hindu family property, and that the defendant had any coparcenary right in the suit property, and thus decreed the suit for possession by ordering the defendant / appellant to hand over the vacant physical possession within two months. This conclusion has been arrived at, in view of the admission of the defendant / appellant as well as his wife while appearing as witnesses, that the property was purchased by the plaintiff/ respondent, from his own funds, and that house was also constructed by him. The learned counsel for the appellant contends that the appeal raises the following substantial question of law for consideration :- Whether the judgment and decree passed by the learned Courts below is not sustainable in law, being contrary to well settled principle, that the plaintiff was to stand on his own legs, and could not draw benefit from the weaknesses of the case of the defendant ? In support of the substantial question of law, the learned counsel for the appellant contends, that once the plaintiff had failed to appear in the witness box, and only his son PW-6 had appeared in support R.S.A. No. 1744 of 2009 4 of the case, the learned Courts below committed an error in decreeing the suit, as plaintiff was to stand on his own legs. It is also the contention of the learned counsel for the appellant, that the evidence led by the defendant / appellant, was over looked while adjudicating the case, therefore, error of law has been committed. On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellant. The case set up by the plaintiff was proved by leading evidence, as it was also not in dispute, that the plaintiff was registered owner of the property in dispute. Once there was clear admission of the case set up by the plaintiff, then it was for the defendant / appellant to prove the case set up to dislodge the admitted case of the plaintiff , which appellant miserably failed. It cannot be said that the suit stands decreed, due to the weaknesses of the defendant / respondent, and not on the basis of case set up by the defendant / respondent, as contended. The admission is best evidence, once the case of plaintiff / respondent stood admitted, no fault can be found with decree under appeal. The substantial question of law is answered against the appellant. No merit. Dismissed. 27.4.2009 ( VINOD K. SHARMA ) 'sp' JUDGE