2010 (9) TMI 180 - HC - Customs

Condonation of delay - delay of 526 days in refiling the appeal - It is alleged that the appeal was returned with objections repeatedly - It is alleged that Clerk of the counsel put the paper book in some other brief which was fixed for hearing - No sufficient ground for condonation of long delay of 526 days in re-filing the appeal is made out - The application is accordingly dismissed Second appeal - Suit was filed by Karnail Singh and Joginder Singh claiming themselves to be sons of Bishan Singh. Joginder Singh has since died and is represented by Gurmit Kaur-appellant No.2 as his legal representative. Gurmit Kaur is daughter of Karnail Singhplaintiff-appellant No.1. The plaintiffs alleged that suit land measuring 72 kanals 13 marlas was ancestral in the hands of Bishan Singh. The plaintiffs constituted Joint Hindu family with Bishan Singh and, therefore, the plaintiffs acquired 1/3rd share each in the suit land by birth. Bishan Singh executed Will dated 03.05.1960 in favour of his wife Nand Kaur. The plaintiffs filed suit to challenge the said Will under Section 6 of the Punjab Custom (Power to Contest) Act, 1920 (in short, the Custom Act) alleging the suit land to be ancestral property and alleging that Bishan Singh had no right to execute the said Will - appellant contended that in the earlier suit, challenge to the Will was under the Custom Act and not on the basis of Joint Hindu Family Property - Held that - sale deed has been executed in favour of the defendants on the basis of judgment passed in suit for specific performance of the agreement to sell. The present plaintiffs were party to the said suit. For this reason as well, the plaintiffs cannot succeed in the instant suit - Appeal is dismissed

Summary

Issues:
1. Condonation of delay in re-filing the appeal.
2. Ownership claim of the plaintiffs over ancestral land.
3. Bar under res judicata.
4. Limitation period for filing the suit.
5. Possession of suit land by defendants.
6. Execution of sale deed in favor of defendants.

Condonation of Delay:
The judgment addressed an application for condonation of delay of 526 days in re-filing the appeal. The delay was attributed to the misplacement of the paper book by the counsel's clerk. The court found no sufficient grounds for condonation, as the paper book was allegedly traced after a significant period, leading to a dismissal of the application and subsequently the main appeal.

Ownership Claim of Plaintiffs:
The plaintiffs claimed ownership of ancestral land, asserting a 2/3rd share in the suit land. They challenged a Will executed by Bishan Singh in favor of his wife, contending that the land was ancestral property. However, the previous suit filed by the plaintiffs under the Custom Act had been dismissed in 1973, establishing that they could not claim ownership of the land in the subsequent suit filed in 1997. The claim was barred by res judicata due to the finality of the earlier judgment.

Res Judicata and Limitation:
The judgment emphasized that the plaintiffs' claim in the subsequent suit was categorically barred by res judicata, as their ownership claim had been negated in the previous suit. Despite contentions that the earlier suit was based on the Custom Act and not Joint Hindu Family Property, the principle of constructive res judicata applied. The suit filed after 24 years was also deemed time-barred, with the defendants in possession of the land since 1965.

Possession of Suit Land by Defendants:
The defendants contended that the suit was barred by res judicata, time limitation, and that they were in possession of the land since 1965. The judgment highlighted observations from the trial and appellate courts, confirming the execution of a sale deed in favor of the defendants based on a decree for specific performance of an agreement. This fact further supported the dismissal of the plaintiffs' claim.

Execution of Sale Deed in Favor of Defendants:
The judgment noted that a sale deed had been executed in favor of the defendants following a decree for specific performance of an agreement. The plaintiffs were parties to this suit, reinforcing the defendants' possession claim and contributing to the rejection of the plaintiffs' appeal.

In conclusion, the judgment dismissed the second appeal, stating that no substantial question of law arose. The courts below had provided detailed reasons supported by evidence on record, justifying their decisions against the plaintiffs. The appeal was dismissed in limine based on the concurrent findings of both lower courts.