JUDGMENT Mr. L. N. Mittal, J. (Oral) : - C. M. No. 8297-C of 2011 : Although strictly speaking, averments made in the application do not make out sufficient ground for condoning the long delay of 104 days in re-filing the appeal, yet adopting liberal approach, the said delay is condoned. The application stands allowed accordingly. Main Appeal : Plaintiffs no.2 to 4, along with some of the legal representatives of plaintiffs no.1 and 5, have filed this second appeal, having lost in both the courts below. 2. Plaintiffs alleged that they are owners in possession of the suit property, as was found by Local Commissioner appointed in earlier suit titled Sheolal vs. Richh Pal etc. Defendants, without any right, title or interest in the suit property, threatened to take forcible possession thereof. Plaintiffs sought permanent injunction restraining the defendants from doing so. 3. Defendants broadly denied the plaint averments. It was denied that plaintiffs are owners or in possession of the suit property. It was pleaded that plaintiffs have no right, title or interest therein. It was also alleged that the suit land is shamlat deh and is meant for common religious purposes. Door of Nohara of defendants also opens in the suit property. The plaintiffs want to grab the suit property. 4. Learned Additional Civil Judge (Senior Division), Narnaul, vide judgment and decree dated 16.03.2006, dismissed the plaintiffs’ suit. First appeal preferred by plaintiffs has been dismissed by learned Additional District Judge, Narnaul, vide judgment and decree dated 16.10.2010. Vide separate order of even date, lower appellate court also dismissed application moved by plaintiffs/appellants for permission to withdraw the suit, with liberty to file fresh suit on the ground that wrong boundaries were shown in the site plan, effecting the suit. Feeling aggrieved, plaintiffs have filed the instant second appeal. 5. I have heard learned counsel for the appellants and perused the case file. 6. Counsel for the appellants contended that application moved by plaintiffs in the lower appellate court for withdrawal of the suit, with liberty to file fresh suit, has been erroneously dismissed by the lower appellate court. The contention cannot be accepted. The plaintiffs pursued the suit in the trial court on the basis of the boundaries mentioned in the plaint and annexed site plan. The suit was dismissed by the trial court vide judgment and decree dated 16.03.2006. First appeal was preferred on 15.04.2006. The contention cannot be accepted. The plaintiffs pursued the suit in the trial court on the basis of the boundaries mentioned in the plaint and annexed site plan. The suit was dismissed by the trial court vide judgment and decree dated 16.03.2006. First appeal was preferred on 15.04.2006. Aforesaid application was moved on 15.03.2010 i.e. after delay of four years after decision by the trial court. The suit also remained pending in the trial court for more than ten years. Thus, the plaintiffs moved the aforesaid application fourteen years after the filing of the suit, for which no justification is made out. Entire evidence was led by the plaintiffs and also by the defendants, on the basis of description of the suit property given in the plaint and site plan. After fourteen years, the plaintiffs (after having already lost in the trial court) could not be permitted to turn around and to plead that the suit property was not correctly described. The alleged defect also does not fall within the purview of Order 23 Rule 1 (3) of the Code of Civil Procedure (in short – CPC) as a formal defect or as other sufficient ground for permitting the plaintiffs to withdraw the suit at appellate stage, with liberty to file fresh suit. The application moved by the plaintiffs in the lower appellate court has been rightly dismissed by the said Court. 7. On merits of the appeal, there is concurrent finding by both the courts below to non-suit the plaintiffs. The said finding is based on appreciation of evidence and is supported by detailed cogent reasons. In addition to it, the earlier suit, in which Local Commissioner was appointed, was filed by predecessors of plaintiffs, as submitted by counsel for the appellants. However, the said suit was dismissed. Consequently, in that suit, possession of the plaintiffs’ predecessors was not upheld by the Court, notwithstanding alleged report of Local Commissioner in that suit that predecessors of the plaintiffs were in possession of the suit property. Even otherwise, Local Commissioner’s report cannot form sole basis of recording finding regarding possession of either party over the suit property. Finding regarding possession of either party has to be recorded by the Court on the basis of entire material on record and not merely on the basis of report of the Local Commissioner. Even otherwise, Local Commissioner’s report cannot form sole basis of recording finding regarding possession of either party over the suit property. Finding regarding possession of either party has to be recorded by the Court on the basis of entire material on record and not merely on the basis of report of the Local Commissioner. Moreover, property mentioned in the report of Local Commissioner is also not linked with the suit property. 8. For the reasons aforesaid, I find that the plaintiffs have been rightly non-suited by both the courts below. Concurrent finding recorded by the courts below in this regard is not shown to be perverse or illegal or based on misreading or misappreciation of evidence. There is no ground to interfere with the said finding even on re-appreciation of evidence. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is meritless and is accordingly dismissed in limine. ---------------------- Jasbir Singh v. Navjot Singh