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2007 DIGILAW 1726 (PNJ)

Sucha Singh v. Santokh Singh

2007-09-20

VINOD K.SHARMA

body2007
JUDGMENT CM No.8671-C of 2007 Vinod K. Sharma, J. (Oral):- For the reasons stated in the application the delay of 124 days in filing the appeal is condoned. The application stands disposed of. CM No.8672-C of 2007 2. This is an application under section 5 of the Limitation Act for condoning the delay of 4 years 9 months and 14 days in filing the appeal. 3. The ground taken is that in fact, an Advocate was engaged in time who did not file appeal in spite of assurance given by him to the appellant. It is further the case set up by the appellant that he did not bother about the filing of the appeal as he was in the settled possession of the land in question and in the month of March, 2007 when he came to Chandigarh he came to know that the advocate engaged by him has shifted his residence and therefore, delay of 4 years, 9 months and 14 days has occurred in filing the appeal. The story set up by the appellant cannot be believed that he did not bother about the case when the execution against the judgment and decree was pending before the Executing Court. So the story set up by the appellant does not make out sufficient ground for condoning the long delay of 4 years 9 months and 14 days. Accordingly, the application is dismissed. RSA No. 3112 of 2007 4. This regular second appeal has been filed against the judgments and decrees passed by the courts below vide which suit filed by the plaintiff-respondent for permanent injunction has been ordered to be decreed. 5. Learned counsel for the appellant contends that the learned courts below have not taken note of actual and physical position existing at the spot in decreeing the suit. He further contends that possession of the defendant-appellant stood proved on record and therefore, there was no occasion for the learned courts below to have decreed the suit of the plaintiff for permanent injunction. 6. Learned counsel for the appellant further contends that the courts below have misread the documents placed on record which proved that there was admission by the plaintiff-respondent regarding the possession of the defendant-appellant on the property in dispute and existence of wall in question at the spot as on 27.8.1978. 7. 6. Learned counsel for the appellant further contends that the courts below have misread the documents placed on record which proved that there was admission by the plaintiff-respondent regarding the possession of the defendant-appellant on the property in dispute and existence of wall in question at the spot as on 27.8.1978. 7. The contentions raised by the learned counsel for the appellant cannot be accepted. 8. Learned courts below on appreciation of evidence recorded a concurrent finding of fact that the plaintiff was proved to be in possession of the property in dispute on the date of filing of the suit and there was admission by the defendant-appellant that while the plaintiff was in jail he had raised construction of the wall during his absence. This plea of the defendant-appellant that there was already existed wall which was demolished and got repaired was not believed. It is also pertinent to notice here that the defendant-appellant has claimed that the property in dispute has come to his share under an exchange entered into between the parties in the year 1954. However, he failed to prove the said exchange on record. Rather counter claim was filed claiming that that he was in possession of the property i.e. the residential house of the parties which was said to have been given in exchange by the defendant-appellant to the plaintiff. However, said counter claim was held to be not competent and that was disbelieved. Learned’ courts below, therefore, have recorded a concurrent finding of fact that the plaintiff-respondent was owner of the property in dispute and was in possession thereof on the date of filing of the suit and therefore, decreed the suit for injunction. No ground is made out which may call for interference by this court in regular second appeal. No question of law much less substantial question of law arises in the present appeal for consideration or this court. Consequently, the appeal is dismissed on merit as well as being barred by limitation. ———————————