Dr Santosh Sahi v. Zabeena Begum and Ors.

1. The main grievance ofthe appellant is that despite there being a report from Tehsildar that the suit property falls under Khasra No.361, as pleaded by her and not in Khasra No.360, as claimed by the respondent/defendant and submissions that thejudgment passed by Supreme Court in SuraiLamp andIndustries Private Limited Vs. State ofHarvana and Anr.(2012) 1 SCC 656 is applicable prospectively,the appeal has been dismissed.

2. On being questioned as to whether this ground was taken by the appellant before the First Appellate Court,learned counsel for the appellant has placed on record copy ofthe first appeal wherein under ground(E)this ground has been taken but not dealt with by the First Appellate Court in the light ofthe decision ofthe Supreme Court in Maya Devi Vs. Lalta Prasad (2015)5 SCC 588,wherein it was held that the operation ofthejudgment in Surai Lamp case (supra) was pointedly and poignantly prospective. Learned counsel for the appellant has drawn attention of this Court to the observation made in paragraph 11 to 14 by the First Appellate Courtin RCA No.20111/2016.

3. On being questioned whether any review was filed before the First Appellate Court on this issue,learned counsel for the appellant submits that he did not file the review petition as he had the apprehension that in the meantime the appeal may become time barred.

4. Learned counsel for the appellant submits that appellant is willing to file the review petition before the first Appellate Court but reserve his right RSANos.384/2016,385/2016,386/2016&387/2016 Page2of[3] w -7 to challenge the decision in appeal ifthe review petition is dismissed by the First Appellate Court.

5. Since the appellant had taken a specific ground challenging the judgment of the learned Trial Court, that his suit could not have been dismissed relying upon the SuraiLamp case(supra)the operation ofthe said Judgment being prospective as held in Maya Devi's case (supra), this contention has not been dealt with by the learned First Appellate Court.

6. These appeals are dismissed as withdrawn giving liberty to the appellant to approach the First Appellate Court by filing the review. The First Appellate Court shall deal with the review petition on merits and shall not dismiss it on technical grounds like limitation. The appellant is given liberty to challenge the decision in appeal after his review petition is disposed ofby the First Appellate Court.

7. Copy ofthe order be given dasti. *RATIBHA RANI,J. FEBRUARY 13,2017 'hkaur'