RSA No.2693 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2693 of 2007 (O&M) and Cross-Objections No. 10-C of 2008 Date of Decision: July 27, 2009 Smt. Santosh Kumari ...... Appellant Versus Sh.Sanatan Dharam Education Society and another ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. V.B.Aggarwal, Advocate for the appellant. Mr. Samir Rathaur, advocate for Mr.Sumeet Goel, Advocate for respondent No.1-Cross Objector. Mr.Harkesh Manuja, Advocate for respondent No.2. **** 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? Ajay Tewari, J. This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the appellant for declaration and possession on the allegation that the respondents had lost their right as donee by undertaking actions which were barred by the gift deed. The specific case of the appellant was that Lala Hukam Chand had gifted the property in dispute to the respondents with a specific RSA No.2693 of 2007(O&M) 2 condition that no interest would be created by them in favour of any other person in any part of the property and that the respondents had constructed shops on a part of the property and leased out the same and thus the gift deed stood revoked. The following questions have been proposed:- a) Whether the judgment and decree passed by the learned lower Appellate Court is liable to be set aside without deciding the application dated 13.1.2006 (Annexure P-1) for getting appropriate demarcation of the land by the appointment of Local Commissioner? b) Whether the finding of the learned courts below on the point of court fee is contrary to law an the proper court fee has been affixed? c) Whether the learned lower Appellate Court has not given any finding on issue No.6 and, therefore,the judgment and decree passed by the learned courts below are liable to be set aside? Learned counsel has taken me through the application dated 13.1.2006. By this application the appellant had specifically noticed that in view of the finding of the learned trial Court with regard to the omission of the appellant to lead any evidence to prove that the shops were constructed on the gifted property 'it has become necessary to get the land gifted through Tamliknama demarcated by appointing some revenue official as local commissioner.' It would be seen that this application though drafted in the form of an innocuous application for appointment of local commissioner, was actually an attempt to lead additional evidence and to fill the gaps noticed by the trial Court in its judgment. Learned counsel has argued that the fact that the application even though nomenclatured as an application for appointment of local commissioner was actually an RSA No.2693 of 2007(O&M) 3 application for additional evidence. He has relied upon Charan Singh v. Jagtar Singh reported as 1999(1) PLR 719 wherein this Court has, relying on Premier Automobiles Ltd.,Bombay v. Kabirunissa and others, AIR 1991 S.C. 91, held that it was incumbent upon the Appellate Court to decide an application under Order 41 Rule 27 CPC (prior to or at least simultaneously at the time of pronouncement of judgment on merits). I, however, find that apart from the omission to mention the correct provisions ( which may in itself not be such a serious infirmity) the appellant has nowhere even pleaded the ingredients of Order 41 Rule 27 CPC. No reason has been given by the appellant as to why she could not get the property demarcated during the trial at the time when her evidence as plaintiff was going on. Both the Courts have rightly found that in the face of the specific denial of the respondents to the allegation that the disputed shops were built on any part of the gifted property it was incumbent upon the plaintiff- appellant to have linked the property with that gifted by late Lala Hukam Chand. Thus, the argument that by not deciding the application dated 13.1.2006 the judgment of the lower Appellate Court has been rendered totally illegal, is rejected. With regard to question Nos. (b) and ( c ) in view of the finding that the plaintiff has not been successfully able to establish the identity of the property the said questions pale into insignificance. Even if the question regarding Court fee or estoppel is held in favour of the plaintiff-appellant no relief can be granted to her. Consequently this appeal is dismissed. In these circumstances the Cross Objections of respondent No.1 with regard to the issue of limitation etc. also lose any meaning. Same RSA No.2693 of 2007(O&M) 4 are also dismissed. Since the main case has been decided, all the pending Civil Misc. Applications are disposed of. (AJAY TEWARI) JUDGE July 27 , 2009 sunita