Gulzar Singh And Others vs Karaj Singh on 12 October, 2009

C.R. No.5823 of 2009 (O&M)                                                   1

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH


                               Civil Revision No.5823 of 2009 (O&M )
                               Date of Decision: October 12, 2009




Gulzar Singh and others                             ...........Petitioners




                               Versus




Karaj Singh                                         ..........Respondent


Coram: Hon'ble Mrs.Justice Sabina

Present: Mr.Sukhbir Singh,Advocate for the petitioner,
                           --

Sabina, J. (oral)

Plaitniff-Karaj Singh filed a suit for permanent injunction

restraining the defendants from encroaching upon and also creating

hindrance for ingress and egress of the plaintiffs to his fields through

passage bearing Khasra No.98. The suit of the plaintiff was decreed by the

Civil Judge (Junior Division) Ajnala vide judgment and decree dated

17.1.2006. Appellants-defendants had failed to lead any evidence in

support of their case. While dealing with issue No.1 in para 8 of the

judgment, the learned trial court held as under:-

“To learned counsel for the plaintiff has also referred to the

revenue record in jamabandi Ex.P1 for the year 1994-95 and

Khasra girdwaries for the period from sauni-1995 till Hari-1998
C.R. No.5823 of 2009 (O&M) 2

in which suit property is shown as gair mumkin rasta. It is

admitted by defendants in the written statement that a general

passage leading from village Kakar to village Talle abuts the

agricultural land of parties to suit. According to plaintiff, it is this

passage which is in disputes. For the purpose plaintiff has

testified on before the court as PW2 and also has examined PW1

in the purpose. Their statements have not been controverted by

defendants through any oral or documentary evidence.

Defendants though alleged in their written statement that another

passage leads to the agricultural land of plaintiff but they have

relied in proving such contention on file. From the

uncontroverted testimonies of PW1 and PW2 and from contents

of documents Ex.P1 and Ex.P2, I find that suit property bearing

killa no. 98 owned by gram panchayat and is a gair mumkin

passage then this suit/property vests in gram panchayat and is

general passage and plaintiff when is resident of village and when

suit property leads to his agricultural land defendants have no

right to hinger plaintiff from using it for the purpose nor they have

right to encroach upon the suit property. Consequently, this issue

is denied in favour of plaintiff and against defendants. ”

Appellants filed an appeal against the judgment and decree

passed by the trial Court along with an application under Section 5 of the

Limitation Act, 1963, (for short `the Act’) seeking condonation of delay in

filing the appeal. Vide the impugned order dated 4.7.2008, the application

under Section 5 of the Act was dismissed and consequently, the appeal was

dismissed being time barred. Hence the present revision petition.

C.R. No.5823 of 2009 (O&M) 3

After hearing the learned counsel for the petitioners, I am of

the opinion that the instant petition is devoid of any merit.

The judgment and decree were passed by the trial Court on

17.1.2006. The appeal challenging the said judgment and decree

was,however, filed in September,2006. The case of the petitioners was that

the mother of petitioner No.1 Gulzar Singh had died on 2.12.2005

and,thereafter, his wife remained under medical treatment. Petitioners led

their evidence in support of their pleas. It has been observed in the

impugned order that AW1 Dr.Kamaldeep Singh had deposed that he had

treated the wife of the petitioner on 4.1.2006, 24.1.2006 and 8.2.2006.

Thus, there was no medical evidence on record to the effect that the wife of

the applicant had remained under treatment after 8.2.2006, whereas, the

appeal was filed in September,2006. The sons of petitioner No.1 Gulzar

Singh i.e. Swinder Singh, petitioner No.2 and Kulwinder Singh, petitioner

No.3 also did not make any effort to file the appeal within the period of

limitation. Even during trial, petitioners had failed to lead any evidence

and the trial court held that the petitioners could not encroach upon the gair

mumkin passage bearing Khasra No. 98 which was owned by Gram

Panchayat. Petitioners had, thus, failed to establish that the delay in filing

the appeal was not intentional and deliberate. I am conscious of the fact that

a liberal approach is required to be taken by the Court while dealing with

application under Section 5 of the Act, however, in the present case, the

petitioners have failed to establish that they had any reasonable cause due to

which they could not file the appeal within the period of limitation.

Keeping in view the totality of circumstances in mind, no ground for

interference is made out as the impugned order does not suffer from
C.R. No.5823 of 2009 (O&M) 4

any material illegality or irregularity which may warrant interference in

exercise of revisional jurisdiction under Article 227 of the Constitution of

India.

Dismissed

( Sabina )
Judge

October 12, 2009
arya