Punjab-Haryana High Court
Banwari vs Dulla And Others on 29 April, 2024
Author: Alka Sarin
Bench: Alka Sarin
2024:PHHC:057537
RSA-4616-2019 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
107 RSA-4616-2019 (O&M)
Reserved on : 04.04.2024
Date of Decision : 29.04.2024
Banwari Lal ....Appellant
VERSUS
Dulla & Ors. ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Abhinav Sood, Advocate for
Mr. Vikram Singh, Advocate for the appellant.
ALKA SARIN, J.
CM-13113-C-2019 & RSA-4616-2019
1. The present appeal has been preferred by plaintiff No.1-
appellant herein challenging the concurrent findings recorded by the Trial
Court vide judgment and decree dated 31.08.2013 and the First Appellate
Court vide judgment and decree dated 17.02.2018.
2. Brief facts relevant to the present lis are that the plaintiffs
(appellant and proforma respondent Nos.13 to 19 herein) filed a suit for
declaration and permanent injunction claiming themselves to be co-owners
in possession to the extent of their shares in total land measuring 117 kanals
14 marlas and challenged mutation No.2341 dated 22.05.1956 and mutation
No.3327 dated 03.10.1979 as illegal, null and void and consequential relief
integrity of this order/judgment.
2024:PHHC:057537
of permanent injunction restraining the defendant-respondent Nos.1 to 12
from alienating the suit land. The suit was contested by the defendant-
respondent Nos.1 to 12 by filing a written statement raising various
preliminary objections. It was averred in the written statement that the
plaintiffs had earlier also filed three suits on similar facts and cause of
action. The first suit was instituted on 05.09.1994, which was dismissed on
17.11.1994; the second suit was instituted on 12.08.1994, which was
dismissed on 18.01.1995 and the third suit was instituted on 07.03.2005,
which was dismissed on 19.09.2005 and the appeal against the said
judgment and decree was dismissed on 28.04.2008 and as such the plaintiffs
were in a habit of filing unnecessary suits. Replication was not filed.
3. On the basis of the pleadings of the parties the following issues
were framed by the Trial Court :
1. Whether the plaintiffs are entitled to the decree for
declaration as well as permanent injunction as prayed
for ? OPP
2. Whether the plaintiffs have got no locus standi to
file the present suit ? OPD
3. Whether the suit is not maintainable in the present
form ? OPD
4. Whether the suit is time barred ? OPD
5. Whether the plaintiffs have concealed the true and
material facts ? OPD
6. Whether the present suit is barred by principles of
res judicata ? OPD
integrity of this order/judgment.
2024:PHHC:057537
7. Whether the plaintiffs have affixed less court fee ?
OPD
8. Relief.
4. The Trial Court vide judgment and decree dated 31.08.2013
dismissed the suit. Aggrieved by the same, an appeal was preferred by the
plaintiffs which was also dismissed vide judgment and decree dated
17.02.2018. Hence, the present regular second appeal which has been
preferred only by plaintiff No.1-appellant.
5. Learned counsel for the plaintiff No.1-appellant would contend
that the plaintiffs (appellant and proforma respondent Nos.13 to 19 herein)
are owners in possession of the suit land and that both the Courts erred in
dismissing the suit of the plaintiffs. It is further the contention that the
defendant-respondent Nos.1 to 12 have no concern with the suit land and
mutation No.2341 dated 22.05.1956 and mutation No.3327 dated 03.10.1979
were illegal, null and void. It is further the contention of the learned counsel
that the suit land had been mortgaged by the predecessor-in-interest of the
plaintiffs which was redeemed on 15.05.1956.
6. I have heard the learned counsel.
7. In the present case the present appeal itself has been preferred
after a delay of 409 days. A perusal of the application for condonation of
delay being CM-13113-C-2019 reveals that the same is totally devoid of any
details as to why the delay occurred in filing the appeal. It is trite that every
day's delay needs to be explained. It is also well settled that the Courts
should not adopt an injustice-oriented approach in rejecting the application
for condonation of delay. However, the Court while allowing such an
integrity of this order/judgment.
2024:PHHC:057537
application has to draw a distinction between delay and inordinate delay for
want of bonafides of an inaction or negligence would deprive a party of the
protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a
condition precedent for exercise of discretion by the Court for condoning the
delay. It has time and again been held that when mandatory provisions are
not complied with and that delay is not properly, satisfactorily and
convincingly explained, the Court cannot condone the delay on sympathetic
grounds alone. In the present case the application for condonation of delay is
totally bereft of any details whatsoever.
8. Even on merits the present appeal deserves to be dismissed
inasmuch as the plaintiffs appear to be habitual litigants and had been filing
multiple litigations against the defendant-respondent Nos.1 to 12. The first
suit instituted by the plaintiffs was on 12.08.1994; the second suit was
instituted on 05.09.1994; the third suit on 07.03.2005 and the fourth suit on
17.04.2014. All the suits were dismissed. The third suit seeking declaration
by way of adverse possession was instituted on 07.03.2005 was dismissed
vide judgment and decree dated 19.09.2005 and the appeal against the said
judgment and decree was also dismissed on 28.04.2008. Dissatisfied with
the said litigation, a fourth civil suit was filed on 17.04.2014 which was
dismissed on 02.05.2016. The present suit was instituted on 02.08.2008.
Both the Courts found that there was no evidence on record to show that the
suit land had been mortgaged and redeemed by the predecessor-in-interest of
the plaintiffs. Further still, it was concurrently found that the parties are
co-sharers and there can be no injunction against a co-sharer. It is apt to note
that one of the suits filed by the plaintiffs was for adverse possession. Once
integrity of this order/judgment.
2024:PHHC:057537
the plaintiffs had filed a suit on the ground of being in adverse possession, it
necessary entails that the ownership of the defendant-respondent Nos.1 to 12
was admitted. Having lost the said litigation, not only before the Trial Court
but also before the First Appellate Court, it does not now lie in the mouth of
the plaintiffs to challenge the ownership of the defendant-respondent Nos.1
to 12.
9. In view of the above, no question of law, much less any
substantial question of law, arises in the present case. The present appeal is
devoid of any merit and there is also no plausible explanation for the
extraordinary delay in filing the present appeal. Both the application for
condonation of delay (CM-13113-C-2019) and the present appeal are
dismissed. Pending applications, if any, also stand disposed off.
( ALKA SARIN )
29.04.2024 JUDGE
Yogesh Sharma
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this order/judgment.
