High Court Punjab-Haryana High Court

Haryana Urban Development … vs Vikram Singh on 12 January, 2009

Punjab-Haryana High Court
Haryana Urban Development … vs Vikram Singh on 12 January, 2009
IN THE PUNJAB AND HARYANA HIGH COURT AT
              CHANDIGARH

                                R.S.A. No. 3200 of 2008 (O&M)
                                Date of Decision : 12.1.2009

Haryana Urban Development Authority & another
                                                             .......... Appellants
                                Versus

Vikram Singh
                                                              ...... Respondent

CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA

Present :    Mr. R.S. Madan, Advocate
             for the appellants.

                   ****

VINOD K. SHARMA, J. (ORAL)

C.M. Nos. 9556-57-C of 2008

This is an application under Section 5 of the Limitation Act for

condoning the delay of 51 days in filing the appeal.

It has been averred in the application that the delay in filing the

appeal has occurred due to administrative procedure involved in taking a

decision to file appeal.

The condonation of delay only entitles a party to contest the

claim on merit and once it is proved on record that the delay has occurred

due to the administrative procedure involved, it is to be held that sufficient

ground is made out for condoning the delay of 51 days in filing the appeal.

The C.M. is allowed. The delay of 51 days in filing the appeal is condoned.

R.S.A. No. 3200 of 2008

This regular second appeal is directed against the judgments
R.S.A. No. 3200 of 2008 (O&M) -2-

and decrees dated 24.4.2007 passed by the learned trial Court and dated

1.4.2008 passed by the learned lower appellate Court vide which suit filed

by the plaintiff-respondent seeking permanent injunction restraining the

appellant-defendant from blocking the passage by raising a wall, has been

ordered to be dismissed.

It is undisputed fact that plaintiff is owner of land, where

construction has been raised and he is also carrying on the agricultural

pursuits. The remaining land of the plaintiff-respondent stands acquired.

The case set up by the plaintiff-respondent was that the passage

being blocked by the appellant-defendant, is the only passage to his land

and, therefore, he was entitled to injunction on the principle of easement of

necessity. It was also claimed that said passage was being used by the

plaintiff-respondent for over 30 years without any interference.

The suit was contested by taking a plea that there is an

alternative passage available to the plaintiff-respondent from the main old

Delhi Gurgaon road.

In order to find out the true position, the learned trial Court was

pleased to appoint a Local Commissioner, who submitted his report Ex.

PW4/A. In the report it was specifically mentioned that there was no other

passage to the land of the plaintiff-respondent except the passage in dispute.

The appellant did not file any objection to the said plea and, therefore, on

the basis of evidence brought on record a concurrent finding of fact has

been recorded by the learned Courts below that except the passage in
R.S.A. No. 3200 of 2008 (O&M) -3-

dispute, which was sought to be blocked, there is no other passage to the

land of the plaintiff-respondent. The suit stands decreed.

The finding of fact recorded by the learned Courts below is

based on appreciation of evidence. The appeal, therefore, raises no question

of law muchless a substantial question of law, to interfere with the

concurrent finding of fact.

There being no merit, the appeal is ordered to be dismissed.

12.1.2009                                        ( VINOD K. SHARMA )
  'sp'                                                JUDGE