Bombay High Court
Baba Genu Karande Gpa [email protected] ... vs The State Of Maharashtra And ... on 2 August, 2021
Bench: V. V. Kankanwadi
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO. 8568 OF 2014
IN
SECOND APPEAL ST.NO.9984 OF 2014
Baba s/o Genu Karande = APPLICANT
(Orig.Plaintiff)
VERSUS
1) The State of Maharashtra & Ors. = RESPONDENT/S
(Orig.Defendants)
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Mr.NV Gaware,Advocate for Applicant;
Mr.BV Virdhe, AGP for Respondents
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 2nd August, 2021.
PER COURT :-
1. Present application has been filed for
getting the delay of 762 days condoned in filing
the Second Appeal.
2. Heard learned Advocate and learned AGP
appearing for respective parties. In order to cut
short, it can be stated that both of them have made
submissions in support of their respective
contentions.
3. The applicant is original plaintiff, who
intends to challenge the concurrent decrees. He
had filed the suit for declaration and perpetual
injunction, which came to be dismissed on 12.2.2008
by Civil Judge, Senior Division, Shrigonda,
District Ahmednagar. His Appeal being RCA No.
64/2008 was dismissed by learned District Judge-8,
Ahmednagar on 14.3.2012.
4. The applicant contends that he got the
knowledge about the said judgment on 22.2.2013 when
he enquired about the matter with his Advocate.
Important point to be noted is that when the
applicant was represented by a competent Advocate,
it will have to be presumed that his advocate would
have communicated to him the decision in the appeal
in reasonable time. How and why he could come to
know about the said judgment and why he could make
enquiry only on 22.2.2013 about the matter, has not
been explained by the applicant. According to him,
he applied for certified copies on 24.2.2013 and
they were received on 18.1.2014. He then states
that after he decided to approach this Court and
sought legal advice in that respect, he was advised
to get the certified copy of the judgment and
decree of the trial Court and thereafter he has
applied for those certified copies. It is to be
noted that when the appeal had gone against him, he
ought to have immediately applied for the certified
copies. Further, he could have taken back his
certified copies, which he had produced in the
first appeal. It was not necessary for him to
obtain it again from the Trial Court. Therefore,
it appears that no proper knowledge was given to
him by the concerned Advocates or he himself has
acted in that way. Further, the applicant says
that he is a poor rustic villager, had no financial
condition. Except his bare words, there is nothing
to support his contention that his condition is
poor. It is also tried to be stated that the
applicant is old aged person, remaining ill many a
times, which had added to his miseries and
therefore, the delay. It is to be noted that even
the appeal was filed through his General Power of
Attorney. Under such circumstance, the ill-health
and age of the applicant-plaintiff, need not be
considered. The General Power of Attorney had
every right to take all those legal actions, which
the original plaintiff could have taken.
Therefore, no justifiable reasons, much less
sufficient, are given to explain the huge and
inordinate delay of 762 days.
5. Apart from the said fact, even on merits,
it appears that both the Courts have consistently
held on facts that the plaintiff had failed to
prove the origin of his title over the suit
property. The suit property is admittedly the
forest land. Though the plaintiff had come with a
case that his father had received the suit property
by way of an agreement for duration of 11 months in
the year 1945-1946, he could not produce any
documentary evidence to support his contention. In
fact, the suit property was to the extent of 5
acres; whereas the defendants accepted that 5 acres
of land was given/allotted to the plaintiff's
father. But, now the plaintiff is claiming more
land of 5 acres, i.e. in all 10 acres of land and
by raising such kind of story, he intends to grab
further 5 acres of land, which he is trying to
encroach upon. Thus, on the facts, both the Courts
below are consistent and when the plaintiff could
not prove his title by filing an appropriate
documentary evidence, there is absolutely no scope
for substantial question of law in the instant
case. Therefore, no purpose would be served by
condoning the delay, by taking an extreme lenient
view. Hence, the application stands rejected.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
