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2009 DIGILAW 1202 (PNJ)

Daya Kishan v. Chander Pati

2009-07-20

HEMANT GUPTA

body2009
JUDGMENT Hemant Gupta, J.:- Defendant No.1 is in second appeal aggrieved against the judgment and decree passed by the Courts below, arising out of a suit for permanent injunction filed by plaintiff-Chander Pati in respect of house No.6/62 shown in letters ABCD. The plaintiff has sought injunction against the defendant to restrain him from interfering in the possession of the plaintiff over the portion marked as EFGH. 2. The plaintiff alleges to have purchased the land measuring 135 square yards underneath the house in question from one Ram Ditta Mal vide sale deed dated 3.9.1969. The Department of Custodian conducted an open auction on 5.12.1964 and Ram Ditta Mal was the successful bidder. A sale certificate was also issued in favour of Ram Ditta Mal. The plaintiff alleges to have made alterations and additions in the year 1973 after getting the plan sanctioned from the Municipal Committee on 17.12.1973. 3. In 1984, proceedings under Section 145 Cr.P.C. were initiated in respect of the dispute of portion of the house marked EFGH. The Executive Magistrate vide order dated 29.10.1987 decided the proceedings against the plaintiff. The plaintiff challenged the aforesaid order in the present suit on the ground that the plaintiff was not a party in such proceedings and the order has been passed without giving any opportunity to the plaintiff. It was also asserted that since the plaintiff is in an exclusive physical possession of the property, therefore, the impugned order in favour of defendant No.1, who has no right, title or interest, is illegal. The plaintiff sought a decree for permanent injunction on the ground that defendant No.1 wants to forcibly interfere in the exclusive physical possession of the plaintiff over the portion marked EFGH. The said suit was filed on 25.5.1988. 4. The present appellant-defendant in his written statement asserted that the plaintiff is neither owner of the portion ABCD nor EFGH. He is owner and in possession of the portion EFGH. Ram Ditta Mal has purchased only 100 square yards, whereas in sale certificate, land purchased has been shown as 135 square yards. The portion EFGH is not part of the land purchased by Ram Ditta Mal. It was also asserted that the house was purchased by Chander Bhan, husband of the plaintiff and the plaintiff is only Benamidar. Ram Ditta Mal has purchased only 100 square yards, whereas in sale certificate, land purchased has been shown as 135 square yards. The portion EFGH is not part of the land purchased by Ram Ditta Mal. It was also asserted that the house was purchased by Chander Bhan, husband of the plaintiff and the plaintiff is only Benamidar. It was asserted that he is in possession of the suit property since 1961, which is exclusive, open and hostile as owner of the portion EFGH for the last more than 12 years and, thus, he has become owner of the same by adverse possession. 5. The appellant relies upon an ex-parte decree passed by the Senior Sub Judge, Bhiwani, in his favour on 22.7.1981 arising out of suit for injunction restraining the husband of the present plaintiff from interfering in the possession of the plaintiff over the suit property situated at Bhiwani. In execution of the said decree, it appears that the judgment debtor Chander Bhan has filed objections that the decree passed by the Senior Sub Judge, Bhiwani, is not binding on the defendants as the property is situated within the area of District Sonepat and the defendants also are residing within the jurisdiction of the said Court. Chander Bhan has made a statement before the Executing Court on 12.10.1985 that he has not interfered with the possession of decree holder nor shall he do so. 6. The trial court framed issues on 13.10.1988 in the present suit. Defendant-appellant Daya Kishan was proceeded ex-parte on 27.1.1995. His application for setting aside the ex-parte order was dismissed on 13.5.1996. He has not challenged the aforesaid order in any proceedings. However, he submitted written arguments before the learned trial court, which decreed the suit vide judgment and decree dated 10.12.1999. It was held that defendant has asserted adverse possession, but had led no evidence and, therefore, no finding regarding adverse possession of the defendant can be given. The said decree passed by the learned trial Court was challenged by the appellant in an appeal filed on 3.10.2000 beyond the time provided for filing of appeal. The appellant has not filed any application for condonation of delay along with the memo of appeal. The same was filed only on 9.10.2003. The said decree passed by the learned trial Court was challenged by the appellant in an appeal filed on 3.10.2000 beyond the time provided for filing of appeal. The appellant has not filed any application for condonation of delay along with the memo of appeal. The same was filed only on 9.10.2003. Thus, the learned first Appellate Court found that the application for condonation of delay is highly belated and does not disclose any cogent reason to condone the delay in filing the present appeal. Still aggrieved, the defendant is in second appeal. 7. I have heard learned counsel for the appellant. She has vehemently argued that the appeal has been dismissed by the learned first Appellate Court without condonation of delay. It is argued that the rights of the parties need to be adjudicated upon on merits rather than on technicalities. Arguments were heard on 8.7.2009 and the orders reserved. Subsequently, the appellant submitted a note pointing out that the arguments already submitted with CM No. 11955-C of 2005 be taken into consideration. The appellant has also pointed out that RSA No. 1746 of 2003 is pending consideration before this Court. The appellant has also sought time to produce some judgments on 12.7.2009. Acceding to the said request and after considering the note sent through Registered Post and after considering the respective contentions of the parties, the matter is being disposed of now. 8. RSA No. 1746 of 2003 arises out of a suit for injunction filed by Chander Pati, the plaintiff in the present suit as well. The said suit is in respect of House No. 337/09 and in respect of the portion marked ABCD. The said suit was decreed by the learned trial Court on 21.8.2000. The appeal against the said judgment was dismissed by the learned Additional District Judge on 11.3.2002. The appeal is by Daya Kishan, the appellant herein as well. The said appeal has been admitted on the basis of argument raised by the appellant “that the findings recorded by the two courts below, are based upon misreading of evidence and as such cannot be judicially sustained.” The said argument was considered to raise a substantial question of law. 9. The said appeal has been admitted on the basis of argument raised by the appellant “that the findings recorded by the two courts below, are based upon misreading of evidence and as such cannot be judicially sustained.” The said argument was considered to raise a substantial question of law. 9. Though the parties in both the suits are the same, but the subject matter of the property is different i.e. it is portion ABCD in a suit, which is subject matter of RSA No. 1746 of 2003 and EFGH in the suit out of which the present appeal arises. Therefore, pendency of the said second appeal, has no assistance to the appellant. 10. COCP No. 963 of 1991 stands disposed of on 20.7.1992 in view of the execution filed by the appellant to seek execution of the decree dated 22.7.1981. A statement was made by the Judgment Debtor on 12.10.1985 that he shall not interfere in the possession of Decree Holder. 11. The appellant has been proceeded ex-parte in the year 1995 in the present suit. The application for setting aside of the ex-parte proceedings was dismissed on 13.5.1996. The appellant raised no grievance against the order passed. He has permitted the trial to proceed. The trial Court has decided the suit in which the defendant has not led any evidence. In the absence of any evidence, the evidence led by the plaintiff in respect of the ownership of the land, merits acceptance and has been taken into consideration by the learned trial Court. Still further, the plea of the defendant is that of adverse possession. The said plea, which debars the lawful owner of its title is required to be substantiated strictly. Therefore, in the absence of any evidence of hostile possession from its inception to the knowledge of the real owner, the said plea is untenable and has been rightly not taken into consideration by the learned trial Court. The factum of alleged decree in favour of the appellant or the statements made therein cannot be read as part of evidence as no such evidence in respect of identity of the property and the effect thereof has been led by the appellant. 12. Though, normally, the Courts are quite liberal in setting aside the ex-parte proceedings and/or ex-parte decree, but the present case does not warrant any such indulgence. 12. Though, normally, the Courts are quite liberal in setting aside the ex-parte proceedings and/or ex-parte decree, but the present case does not warrant any such indulgence. The conduct of the appellant is that of a contumacious litigant, who has abstained from the proceedings and was satisfied with the order passed by the trial Court in the year 1996. Even after the decree was granted by the trial Court, the appellant has taken nine months to file appeal and that too without an application for condonation of delay. The appellant has taken almost another three years to file an application for condonation of delay. It only shows that the appellant is not a bona-fide litigant prosecuting with due diligence. Thus, I do not find any reason to grant further indulgence to the appellant to prosecute the proceedings at this stage. The finding of fact recorded does not give rise to any substantial question of law for consideration in the present appeal. Hence, the present appeal is dismissed. ------------