Hirdey v. Sumer Singh & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Jag Mohan Ghuman, Advocate for Mr. P. M. Anand, Advocate for the applicant-appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 5935-C of 2010 : Allowed as prayed for. C. M. No. 5936-C of 2010 : Allowed as prayed for. C. M. No. 5937-C of 2010 : This is application for condonation of delay of 829 days in re- filing the appeal. It is alleged in the application on account of shifting of office of the counsel, and change of clerk of the counsel, the appeal could not be re-filed within time. Taking these averments on face value, these do R. S. A. No. 1918 of 2010 (O&M) 2 not constitute sufficient ground for condonation of delay of more than two years and three months. It is unbelievable that for two years and three months, even the appellant did not inquire about the status or fate of the appeal. Such long delay of more than two years and three months cannot be condoned merely for the asking, notwithstanding that the law of condonation of delay is liberal. Accordingly, I find no sufficient ground for condoning the long delay of 829 days in re-filing the appeal. The application is dismissed. Main Appeal : This is second appeal by plaintiff Hirdey, who has been unsuccessful in both the courts below. Since application for condonation of delay in re-filing the appeal has been dismissed, the appeal is liable to dismissal on this ground. However, even on merits, the appellant has no case. Appellant filed two suits – one against Sumer Singh etc. and the other against Om Parkash alleging that plaintiff is owner in possession of residential house depicted by letters ABCD in yellow and red colours in site plan, which is part of Ahata Nos.1117 and 1118 situated in abadi of Village Jharsa. The plaintiff is residing in the said house since the year 1968 after constructing it. There is vacant suit land depicted by letters EBCF in red colour in the site plan, which is being used as open courtyard by the plaintiff, who is owner in possession thereof also. The defendants, without having any right, title or R. S. A. No. 1918 of 2010 (O&M) 3 interest in the suit land, started claiming themselves to be owners thereof and threatened to encroach upon the suit land. Accordingly, plaintiff filed the aforesaid suits for permanent injunction. The plaintiff also claimed ownership of the suit plot by adverse possession. Defendants controverted the allegations of the plaintiff and pleaded that plaintiff is neither owner nor in possession of the suit property nor he ever remained in possession thereof. Suit property is not part of Ahata No.1117. Defendants are owners in possession of the suit property forming part of Khasra No.1118. Defendants purchased it vide sale deed dated 05.02.1983 and raised some construction therein. Defendants also claimed themselves to be bona fide purchasers of suit property. The plaintiff has no right, title or interest in Khasra Nos.1117 and 1118. Plaintiff's house is not situated in Ahata Nos.1117 and 1118. Learned Civil Judge (Junior Division), Gurgaon, vide common judgment dated 15.01.2007, dismissed both the suits. First appeal preferred by the plaintiff stands dismissed by learned Additional District Judge, Gurgaon, vide judgment and decree dated 27.09.2007. Feeling aggrieved, the plaintiff has preferred the instant second appeal only in the suit filed against Sumer Singh etc. and has not preferred any second appeal in suit filed against Om Parkash. I have heard learned counsel for the appellant and perused the case file. R. S. A. No. 1918 of 2010 (O&M) 4 As noticed herein above, no second appeal has been preferred in suit filed against Om Parkash and consequently, decree in the said suit against the plaintiff has attained finality. In view thereof, the plaintiff cannot succeed in the instant second appeal also. In addition to the aforesaid, plaintiff's oral evidence is not sufficient to prove his ownership or possession over the suit land. No demarcation has been obtained to depict that suit land is part of Ahata Nos.1117 and 1118, as pleaded by the plaintiff. There is also no documentary evidence to prove ownership and possession of the plaintiff over the suit property. Report of Local Commissioner appointed by Revenue Authorities reporting possession of the plaintiff over the suit land has no evidentiary value as question of determination of possession over the suit property, could not be delegated to Local Commissioner nor the said Local Commissioner was appointed in the suit by the Civil Court. Even otherwise, merely by tethering cattle in the vacant suit land, it cannot be said that plaintiff is in possession of the suit land. On the other hand, defendants have produced sale deed vide which they have purchased the suit land. The plaintiff did not even file replication to the written statement filed by defendants and therefore, the version of the defendants stands uncontroverted. The plaintiff also set up claim of ownership by adverse possession and it would depict that he himself is not owner of the suit land. Thus, examined from any angle, plaintiff's case is not proved. R. S. A. No. 1918 of 2010 (O&M) 5 Both the courts below, on proper appreciation of evidence on record, have arrived at concurrent finding against the plaintiff. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in the second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine. July 08, 2010 monika ( L. N. MITTAL ) JUDGE