Gurdeep Singh Giani and Another vs Buta Singh and Others

L.N. Mittal, J.

C.M. No. 11803-C of 2012 :

For reasons mentioned in the application, which is accompanied by affidavit, delay of 3 days in filing the appeal is condoned.

C.M. No. 11804-C of 2012 :

This is application by appellants for condonation of delay of 205 days in re-filing the appeal. There is usual standard excuse that the paper book, after being returned by the Registry with objections, was put in brief of some admitted case. On the basis of said vague and general plea, which is being used in almost every case to seek condonation of long delay, such long delay of almost seven months cannot be condoned. The application is accordingly dismissed.

Main Appeal :

Since delay in re-filing the appeal has not been condoned, the appeal is liable to be dismissed on this ground. However, even on merits, the appellants cannot be succeed.

This is second appeal by plaintiffs, who have been non-suited by both the courts below. Grievance of the plaintiffs is that defendant No. 1 has sold specific 04 kanals 18 marlas land out of the suit land measuring 08 kanals of Killa No. 20, although defendant No. 1 was not in exclusive possession of the same, and therefore, could not have sold the specific portion of the joint land. The sale was effected by defendant No. 1 in favour of defendants No. 2 and 3 vide sale deed dated 14.02.1994. The said sale deed and consequent mutation are under challenge in the suit. Consequential relief of injunction was also claimed restraining the defendants from alienating the suit land.

Defendants resisted the suit and controverted the averments of the plaintiffs. It was pleaded that defendant No. 1 was in exclusive possession of the suit land and she rightly sold the same to defendants No. 2 and 3, who have further sold the same (during pendency of the suit) vide sale deed dated 31.12.2001 to one Chamkaur Singh, who has further sold it vide sale deed dated 12.05.2004 to one Tej Kaur, who is now owner in possession of the suit land.

Both the courts below have dismissed the suit of the plaintiffs, who have, therefore, filed this second appeal.

I have heard counsel for the appellants and perused the case file.

Counsel for the appellants contended that the plaintiffs/appellants were in exclusive possession of the suit land, and therefore, defendant No. 1 could not alienate the specific portion thereof. The contention is completely misconceived. Counsel for the appellants conceded that land measuring 04 kanals 18 marlas out of 08 kanals land of Killa No. 20 sold by defendant No. 1 is not in excess of her share. Counsel for the appellants read the relevant part of the sale deed executed by defendant No. 1, wherein she has not specified any specific portion measuring 04 kanals 18 marlas out of the total joint land measuring 08 kanals. Thus, it cannot be said that defendant No. 1 has alienated specific 04 kanals 18 marlas land out of joint land measuring 08 kanals.

Added to the aforesaid, learned lower appellate court has redressed the aforesaid grievance of the plaintiffs also by specifically making it clear that the impugned sale deed dated 14.02.1994 executed by defendant No. 1 in favour of defendants No. 2 and 3 will be treated as sale of share of the joint holding and not sale of specific portion. In spite of this specific direction of the lower appellate court, the plaintiffs have filed this second appeal unnecessarily to raise the aforesaid grievance.

As regards contention of counsel for the plaintiffs-appellants that the plaintiffs are in exclusive possession of the suit land, the same is not substantiated by the documentary evidence. In revenue record, the entire joint land has been shown to be owned and possessed by all the co-sharers jointly. Thus, neither plaintiffs are in exclusive possession of the suit land nor defendant No. 1-vendor was in exclusive possession of the suit land or any part thereof. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is accordingly dismissed in limine.