Rambhau Bhaga Abhale And Others vs Sumanbai Rambhau Abhale And ...
2021 Latest Caselaw 10718 Bom

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                          BENCH AT AURANGABAD


               CIVIL APPLICATION NO.7402 OF 2019
                      IN SAST/22551/2018

                RAMBHAU BHAGA BHALE AN OTHERS
                           VERSUS
              SUMANBAI RAMBHAU ABHALE AND OTHERS

                               .....
          Advocate for Applicants : Mr. A. N. Nagargoje
       Advocate for Respondents No.1 to 3 : Mr. V. Y. Bhide
        AGP for Respondents No.4 and 5 : Mr. A. M. Phule
                               .....

                                     WITH

               CIVIL APPLICATION NO.1010 OF 2021
                      IN SAST/25275/2020

              SUMANBAI RAMBHAU ABAHEL AND OTHERS
                           VERSUS
               RAMBHAU BAHGA ABHALE AND OTHERS

                               .....
            Advocate for Applicants : Mr. V. Y. Bhide
    Advocate for Respondents No.1 to 3 : Mr. A. N. Nagargoje
       AGP for Respondents No.4 and 5 : Mr. A. M. Phule
                               .....

                               CORAM :   SMT.VIBHA KANKANWADI, J.

                               Date of Reserving The Order                 :
                               27-07-2021

                               Date of Pronouncing The Order               :
                               10-08-2021




::: Uploaded on - 11/08/2021                   ::: Downloaded on - 12/08/2021 03:54:44 :::
                                                 2                         CA 7402-2019, 1010-2021




ORDER :

1. Both the applications are between the same parties and the

properties involved are also almost the same. The First Appellate

Court has decided both the matters on the same day and, therefore,

the applications for condonation of delay are considered together.

2. Heard learned Advocate A. N. Nagargoje, learned Advocate Mr.

V. Y. Bhide and learned AGP Mr. A. M. Phule appearing for respective

parties. In order to cut short, it is stated that both of them have

made submissions in support of their respective contentions.

3. The applicants in Civil Application No.7402 of 2019 are the

original defendants No.3 to 5. Respondents No.1 to 3 in that

application are the original plaintiffs who had filed Special Civil Suit

No.44 of 2004 before learned Civil Judge, Senior Division,

Sangamner, District Ahmednagar. The suit was decreed which was

for recovery of amount of their 3/4th share which was the

compensation amount in respect of the property acquired by

defendants No.1 and 2 for construction of Nilwande Dam and for

restraining defendants No.3 to 5 therein from withdrawing the

amount of compensation. The said Judgment and decree was

3 CA 7402-2019, 1010-2021

challenged by the present appellants by filing Regular Civil Appeal

No.56 of 2012 (then old First Appeal No.1124 of 2006) before leaned

Adhoc District Judge-1, Sangamner. The appeal came to be

dismissed on 27-03-2018. Those appellants want to challenge the

said Judgment and decree in the second appeal, however, there is a

delay of 19 days. Though the learned Advocate appearing for

respondents No.1 to 3 strongly opposes, yet taking into

consideration the duration of the delay and reasons mentioned, the

delay stands condoned.

4. In Civil Application No.1010 of 2021, the applicants are

plaintiffs No.1 to 3 in said Special Civil Suit No.44 of 2004 and

respondents No.3 to 5 are the applicants in Civil Application No.7402

of 2019 whose delay condonation application for condoning the delay

of 19 days has been allowed in the above said paragraph. Now for

the applicants in this Civil Application No.1010 of 2021 there is a

delay of 609 days in preferring the second appeal as per their

contention. They want to challenge the same decree to the extent it

has gone against them. It has been contended that in determining

the share and distribution amongst the plaintiffs and the eligible

defendants, the compensation amount awarded to the joint family is

4 CA 7402-2019, 1010-2021

only considered. Plaintiff No.1 who is the mother, her share has not

been considered, who is also having equal share to the sons and

husband and, therefore, to that extent they want to challenge, but

then it has been contended that due to the misunderstanding and

wrong advise, leading to the confusion in understanding the decision

in Regular Civil Appeal No.56 of 2012 and one more Regular Civil

Appeal No.10 of 2004 which was also for the partition between the

same parties, they had not preferred the second appeal. But when

they realize the conflicting Judgments in those appeals which were

decided by the same Judge on the same day, they instructed their

Advocate to file a second appeal. However, due to the COVID-19

pandemic situation, they could not approach.

5. The application has been resisted by respondents No.1 to 3

herein and it is stated that the appeal was decided on 27-03-2018

when there was no pandemic situation. The pandemic situation has

started from the month of March 2020 and the applicants cannot

take advantage of the decisions of extension of limitation by Hon'ble

Apex Court in SUO MOTO WRIT (CIVIL) NO.3 of 2020 because the

limitation for preferring appeal had much earlier expired for the

applicants.

5 CA 7402-2019, 1010-2021

6. Learned Advocate for the applicants has tried to give as to how

the confusion was created. It was stated that the Special Civil Suit

No.44 of 2004 was decided by Civil Judge, Senior Division,

Sangamner on 22-09-2006. That decree was challenged in Regular

Civil Appeal No.56 of 2012 (old First Appeal No.1124 of 2006). That

appeal was decided on 27-03-2018 and in that decision plaintifs

No.2 and 3 as well as defendant No.3 were held to be entitled to get

1/3rd share each equal to Rs.1,15,000/- and it was decided that

plaintif No.1 would get 1/12th share to the extent of Rs.9580/- from

the amount which would be received by defendant No.3. The

property involved in that suit was the compensation amount

deposited by the Government in view of the acquisition of ancestral

agricultural lands. However, as regards the second litigation is

concerned, it was Regular Civil Suit No.242 of 1989 which was

decided by learned Civil Judge, Junior Division, Akole on 27-04-2001.

Regular Civil Appeal No.10 of 2004 was preferred, it was decided on

27-03-2018 by learned Adhoc District Judge-1, Sangamner. It was

decided in that suit that plaintifs and defendants are having 1/7th

share in each suit property, however in appeal, it was modifed and it

was stated that plaintifs No.1 to 3 and defendants No.1, 3 and 4

have 1/6th share each. Some of the parties are diferent in that suit,

6 CA 7402-2019, 1010-2021

however that suit was for partition of the ancestral agricultural land

as well as house property. The fact that was required to be noted is

that the plaintifs were the same in both the matters but their shares

were diferently carved out and, therefore, it had led confusion.

7. There appears to be some confusion in the mind of the

applicants and that can be taken as good ground, however

applicants cannot take advantage of the order of the Hon'ble Apex

Court in recognizance of extension of limitation passed in SUO MOTO

WRIT (CIVIL) NO. 3 of 2020, as in the present case both the

Judgments in both matters were delivered by the learned Adhoc

District Judge, Sangamner on 27-03-2018 and at that time there was

no pandemic situation. When the limitation period had already

began and also ended, there was no question of granting any

extension of period of limitation due to the peculiar circumstances.

The delay that would come to 888 days, still taking into

consideration the said confusion and since the vital rights of the

parties are involved and taking into consideration the fact that the

delay caused in another application has been condoned, it may

further lead to diferent decisions, it is necessary that all the disputes

should be resolved before this Court. The inconvenience that is

caused to respondents No.1 to 3 as well as to the State due to this

7 CA 7402-2019, 1010-2021

delay, it deserves to be compensated in terms of money. Hence, the

said application also deserves to be allowed, however with cost.

Hence, following order.

ORDER

(1) Civil Application No.7402 of 2019 stands allowed. (2) The delay of 19 days caused in filing second appeal stands condoned.

(3) Registry to verify and register the second appeal. (4) Civil Application No.1010 of 2021 also stands allowed.

                (5)      The delay of 888 days in filing second appeal
                stands       condoned    subject   to   deposit       of    cost      of

Rs.25,000/- (twenty-five thousand) within a period of one (01) month from today.

(6) After the amount is deposited, Registry to verify and register the second appeal.

(7) Respondents No.1 to 3 are allowed to withdraw amount of Rs.5000/- each (five thousand). Rest of the amount be credited to Government.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-