Balwant Singh v. Buta Singh & Anr.

Hon'ble Mr. Justice Ajay Tewari Present: Mr.O.P.Kamboj, Advocate for the appellant. ****

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 concurrent judgments of the Courts below decreeing the suit of the respondent-plaintiff for a declaration that he continues to remain owner in possession of the land in dispute and the mutation and revenue entries in favour of the appellant are illegal, null and void and ineffective qua his rights. It is not disputed that earlier also the respondent-plaintiff had filed a suit against the appellant in respect of 26 kanals of land. That suit admittedly ended in a compromise whereby appellant retained 8 kanals of land and surrendered 18 kanals of land to the respondent. RSA No. 1409 of 2010(O&M) 2 However, since he was able to get the mutation of the land in his favour and revenue record also in his favour, the respondent filed the instant suit. The plea of the appellant was that after the compromise and after handing over the possession to the respondent, he had again come into possession and had now become the owner of the land by way of adverse possession. While appearing as witness the appellant further sought to improve his case by claiming that at the time the earlier compromise was effected, there was an oral understanding between him and the respondent and that the respondent would pay him Rs. 30,000/-. However, as noticed by the Courts below this evidence was beyond the scope of pleadings as this plea was not taken in the written statement. Further, both the courts noticed that this plea was even otherwise unsustainable since the appellant had admitted in his cross-examination that at the time of the original compromise possession of 18 kanals of land had physically been handed over to the respondent but could not explain how he came back in possession. The following questions have been proposed:- i) Whether both the courts below have acted with perversity while basing their judgment on gross misreading and non- reading of the oral an documentary evidence on the record? ii) Whether both the courts below have not legally appreciated and interpreted the documents Ex.D1 to D4 which are revenue record of Jamabandis and Khasra Girdawaris while deciding the issue of possession of the suit land? iii)Whether both the Courts have violated Sections 91 and 92 of RSA No. 1409 of 2010(O&M) 3 the Indian Evidence Act, while relying upon the oral evidence and discarding the documentary evidence of Ex.D1 to D4 on the record? iv)Whether the law of limitation has been wrongly interpreted by both the courts below while deciding t he issue No.6 i.e. whether the suit is time barred? v) Whether both the courts below have failed to apply section 27 of the Limitation Act because right of ownership of the plaintiff/respondent has extinguished as he did not file suit for possession within 12 years from the year 1981 since when the appellant/defendant is in possession of the land which is open, hostile and notorious? vi)Whether the learned Lower Appellate Court was legally justified while deciding the appeal of the appellant in the absence of the counsel for the appellant while marking the presence of the present appellant in person, who cold not defend his case in respect of compromise as well as on the basis of other arguable points in his favour? It would be seen that all the questions proposed are pure questions of fact though some of them have been adroitly framed to contain a veneer of law. Apart from this, another novel plea has been advanced in the present case. The appeal as filed was barred by 868 days' delay. The plea taken is that actually during the pendency of the first appeal on

3.9.2003 yet another compromise had taken place between the appellant and the respondent as per which respondent had relinquished all his claim on the RSA No. 1409 of 2010(O&M) 4 land in dispute. It is further averred that the said compromise was to be placed on the record of the case so that the appeal could be disposed of in terms thereof. It is further averred that when the case came up for final arguments on 15.12.2005 (more than 27 months after the alleged compromise) the counsel for the appellant did not appear and further that the appellant who had personally appeared could not explain the fact of the compromise to the learned Judge. It is next mentioned that the appellant came away with the impression that the appeal had been allowed in terms of the compromise(which in itself is an astounding claim in the face of the previous assertion that neither the compromise was placed on record nor the counsel for the appellant had appeared). It is further mentioned that for about 2 ½ years thereafter the respondent did not try to disturb the possession of the appellant thus fortifying his belief that the appeal had been decided as per the compromise. It is next stated that only when (after this huge lapse of time) the respondent tried to disturb the possession of the appellant in July, 2008 did he came to know about the real facts and filed the appeal on 29.7.2008. The story does not end here. The appeal was returned on

30.7.2008 with the following objections:-

1. Trial court decree should be stamped.

2. How this appeal is within limitation.

3. Certified copies of the trial court judgment and decree should be filed.

4. Index should be completed.

5. Affidavit should be attested. RSA No. 1409 of 2010(O&M) 5

6. Opening sheet should be filed.

7. Law point should be mentioned in the grounds.

8. How the court fee has been assessed.

9. Page marking according to index.

10.Photostat copies should be signed by the counsel.

11.Any other case. However, the appellant took another period of 567 days to remove the objections and ultimately refiled the complete appeal only on

22.03.2010. The explanation given for this delay is that the appellant was preparing some documents i.e. Annexures A-1 to A-4. These documents are also referred to in application for additional evidence which contains the photocopy of the alleged compromise, a photocopy of an application allegedly prepared by the counsel for the respondent to withdraw the suit and the report of a document expert certifying the thumb impressions on the alleged compromise to be those of the respondent. Interestingly the expert mentions that he has used photocopies of documents to analyse the disputed thumb impressions and the standard thumb impressions. In my opinion not only is the appeal devoid of any merit even the applications deserve to be dismissed. The story trotted out to cover the delay of 867 days in the application for condonation of delay is fantastic and beyond belief. It is inconceivable that a compromise would be arrived at between the parties, yet for more than 2 years and 3 months the appellant would not press the Court to decide the case in his favour in view thereof. Further nothing has been shown as to what was the incentive with the respondents to withdraw their entire case after having won it in the Courts below on merits. No RSA No. 1409 of 2010(O&M) 6 consideration is alleged to have been given for the relinquishment of right of the respondent. Even in the application for condonation of delay in refiling it is not shown how the documents Annexure A-1 to A-4 were necessary for filing the case within the prescribed period of 90 days. Consequently this appeal, the application for condonation of delay in filing, the application for condonation of delay in refiling and the application for stay are dismissed. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. March 31, 2010 sunita (AJAY TEWARI) JUDGE