Bombay High Court

Dyandeo Baburao Linge And Others vs Jyotiram Indrajeet Randive And ... on 23 September, 2021

Bench: V. V. Kankanwadi

                                            (1)


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                 CIVIL APPLICATION NO. 7186 OF 2019
                                 IN
                 SECOND APPEAL St. NO.5460 OF 2019
                                with
                 CIVIL APPLICATION NO. 7185 OF 2019

 1.       Dnayndeo s/o baburao Linge
          and Ors.                                             = APPLICANTS

          VERSUS

 1.       Jyotiram s/o Indrajeet Randive
          and Ors.                                             = RESPONDENTS
                                  -----
 Mr.SB Choudhari, Advocate for Applicants;
 Ms.Lomte, Adv. h/for Mr.VD Salunke,Advocate for Resp No.1.
                                         -----

                                    CORAM :       SMT.VIBHA KANKANWADI,J.

                                    DATE :        23rd September, 2021.
 PER COURT :-

 1.               Present           application      has     been       filed        for

condonation of delay of 667 days caused in filing

Second Appeal. Present applicants are original

defendants, and present Respondent No.1 is original

plaintiff. The original plaintiff filed suit for

declaration of ownership and perpetual

injunction,bearing RCS No.245/2010, before 2nd

Joint Civil Judge, Senior Division, Osmanabad. The

said suit came to be decreed on 12.11.2014. Present

appellants, i.e. original defendant Nos. 1, 2 and

4, filed RCA No.214/2014. It was heard and

dismissed by learned District Judge-1, Osmanabad on

18.1.2017. Hence, they wanted to file Second

Appeal, however, there is delay of 667 days.

2. The applicants have contended that after

dismissal of their appeal, their Advocate had never

communicated the said order to them. Notices came

to be issued to them in August 2018 in RCS No.

697/2018. The applicant approached their Advocate

and asked about the pending appeal. At that time,

the came to know about dismissal of their appeal.

It is also stated that applicant No.1 was looking

after the litigation, who is 70 years old person.

He as well as his wife are suffering from heart

disease. They had incurred huge expenses on their

medical treatment and, therefore, they could not

approach the Advocate at Aurangabad for filing the

Second Appeal.

3. Learned Advocate Ms.Lomte holding for Mr.

VD Salunke, learned Advocate appearing for the

respondent No.1, strongly opposed the application

and submitted that no reasonable grounds have been

shown for condoning the delay. Reliance has been

placed on the decision in the case of Vitthal

Dhondiba Chavan Vs. Madhavrao @ Mahadev Tukaram

Chavan and Ors. - 2009 (5) Bom.C.R., 29 , wherein

this Court held that, when the applicants are

contending that they came to know about pendency of

the Second Appeal after receiving letter from the

Advocate and the original Karta expired, it cannot

be accepted that from the year 2014, the

circumstances were beyond control of the applicants

and they could not file the application for

bringing the legal heirs of the deceased appellant

on record. The averments made in the application

are vague in nature. They are not supported by any

necessary documents and it does not disclose

sufficient cause to take liberal approach to

condone the delay.

4. Further reliance has been placed on the

decision in the case of Balwant Singh (Dead) Vs.

Jagdish Singh - AIR 2010 SC 3043 , wherein it is

also stated that to invoke discretionary powers of

Court to condone delay in filing an appeal on an

application, appellant or the applicant has to show

sufficient cause, which prevented him from filing

the appeal or the application within prescribed

period of limitation. It will not be out of place

to mention here that now applicant No.1 has

expired and his some of the legal representatives

are on record; yet the delay, that has been caused

in filing the Second Appeal, has not been properly

explained.

5. The ratio laid down in the authorities

relied on by the learned Advocate for the

respondent, cannot be denied. However, it is a

cardinal principle that each case will have to be

viewed from its own facts and circumstances. Here,

the applicants have specifically contended that

their Advocate had not even communicated about

dismissal of their appeal to them and, therefore,

they had no knowledge about dismissal of the

appeal. In fact, in normal course, this could not

have been a ground to condone the delay as it is

generally presumed that Advocate will do his

professional duty. However, when the application

is supported by an affidavit, the element of truth

may be considered in such allegations.

6. Another fact is that the parties are

agriculturists and also serving and applicant No.1,

who was looking after the litigation is more than

70 years old person. Definitely, it happens in

rural area that one person looks after a litigation

and others keep faith in him. Therefore, the delay

though caused is inordinate, deserves to be

condoned; yet the inconvenience that would be

caused to Respondent No.1, deserves to be

compensated in terms of money. Awarding costs of

Rs.6,000/- would serve the justice.

7. Immediately after hearing the application

for condonation of delay, the Second Appeal was

taken up for admission.

 8.               Heard           learned       Advocate              for          the

 appellants.                   In fact, in view of Ashok Rangnath

Magar Vs. Shrikant Govindrao Sangvikar - (2015) 16

SCC 763, it is not necessary that the respondent

should be heard for admission of the Second Appeal.

If the appellants are successful in showing that

substantial questions of law are arising then this

Court has to frame those substantial questions of

law. No doubt, in this case, Respondents were

served and Respondent No.1 was represented by the

Advocate before framing of the substantial

questions of law.

9. The respondents - original plaintiffs had

come with a case that he is owner of the property.

He purchased 2 hectares and 12 R. land from Gut

No.202, situated at village Sarola(Bk), Tq. And

District Osmanabad. He says that he had purchased

the suit property from deft.No.3 through sale-deed.

Prior to that, there was an agreement to sell

executed on 28.7.2005 for a consideration of Rs.

3,75,000/-. Earnest amount of Rs.2,00,000/- was

paid and thereafter on two occasions, further

amount of Rs.71,000/- and Rs. 1,00,000/- was paid.

It is also stated that deft.No.2 his mother had

filed RCS No.254/2005 for partition and separate

possession. However, that suit as dismissed on

22.11.2006. Thereafter, when the plaintiff was in

the suit property on 1.8.2010, deft.Nos. 1 and 4

had entered the suit property and tried to damage

the crop. The defendants have also got some false

mutation entries done in respect of the suit

property and, therefore, the plaintiffs filed the

suit for declaration and injunction.

10. It was the written statement of defendant

Nos.1, 2 and 4 that defendant No.3 was not

hectares and 12 R. He had not supported to sell it

out. There was oral partition between them. Though

there was some family arrangement earlier,

deft.No.4 has been allotted 80 R. land on southern

side; Deft.No.3 was allotted 80 R. land on the

northern side; whereas deft.No.2 was allotted 80 R.

on the north side of the land of deft.No.3.

Memorandum of partition has been prepared and

mutation entry No. 198 has been then executed.

Still it is stated that deft.No.3's predecessor,

i.e. Mahendra had sold the said property to the

plaintiff, who had no authority at all. The

property is not in possession of the plaintiff and,

therefore, question of injunction does not arise.

11. As aforesaid, the Trial Court has held

that the plaintiff is owner and possessor of the

suit land by virtue of sale-deed dated 26.5.2010.

it was also held that the plaintiff has proved

obstruction at the hands of the defendants and,

therefore, he is entitled to get the declaration

and injunction as prayed. The first Appellate

Court has dismissed the appeal filed by the present

appellants.

12. It can be seen from the judgments of the

Courts below that admittedly, the suit property,

which was Gut No. 202, was initially admeasuring 6

hectares and 37 R. It is the case of the defendant

that as per the family arrangement, it was divided

into 2.13; 2.12 and 2.12 and that was between

Dnyandeo, Dhananjay and Mahendra respectively.

Dnyandeo was father and Dhananjay, Mahendra and

Ravindra are the sons. They contend that there was

oral partition in the year 2008 and then it was

distributed as 80 R. land to Dnyandeo; 80 R to

Dhananjay and 80 R. to Ravindra plus 80 R. to son

of Mahendra, as by that time, Mahendra had expired.

It appears that the Trial Court is unnecessarily

laid more stress on the mutation entries when it is

the law that mutation entry cannot create ownership

nor it takes away ownership.

13. Another fact to be noted is that the

legal representatives of original deft.No.3, i.e.

Mahendra, i.e. his wife daughter and son, had filed

RCS No.535/2012 before Civil Judge, Junior

Division, Osmanabad and in that proceeding, sale-

deed executed by deft.No.3 in favour of the present

plaintiff, has been held to be not binding on those

legal representatives as it was not for legal

necessity. The effect of this decree ought to have

been considered and further it ought to have been

considered as to whether Mahendra had share of 2

hectare and 12 gunthas in the suit land.

14. In view of the discussion as above,

substantial questions of law, as contemplated under

Section 100 of CPC, are arising in this case,

requiring admission of the Second Appeal. Hence,

the Second Appeal stands admitted.

15. Following are the substantial questions

of law, -

                  i.             Whether         the         mutation              entry
                  regarding        entering       names         of     Dyaneshwar,
                  Dhananjay         and         Mahendra           amounted             to
                  partition        when        Ravindra        was        not      given






                  share in the suit property ?


                  ii.             Whether he had right to sell out

the suit land admeasuring 2 hectares and 12 R to the plaintiff ?

iii. Whether original defendant No.3 was exclusive owner of the suit land, i.e. 2 hectares and 12 R. from Gut No. 202 situated at village Sarola (B) Tq. and Dist. Osmanabad ?

iv. What was the effect of judgment and decree passed in RCS No.535/2012 by learned Civil Judge, Junior Division, Osmanabad, declaring the sale-deed executed by original deft.No.3 as not binding on his legal representatives ?

                  v.              Whether              the      defendants               prove
                  that         there       was     oral         partition            amongst
                  them           in        respect            of        Gut          No.202,
                  admeasuring               6      hectares             and        37       R.,

distributing 80 R. land amongst deft.Nos. 1, 2, 4 and son of deft.No.3 ?

vi. Whether the decisions by both the Courts below are perverse and require interference in the Second Appeal.

16. The delay stands condoned subject to

payment of the aforesaid costs within a period of

fifteen days from today. The Civil Application for

condonation of delay stands allowed and disposed

of. After depositing the costs, it be paid to

Respondent No.1.

17. Issue notice to respondents Nos. 2-A to

2-C, returnable on 17th January, 2022. Learned

Advocate waives notice for Respondent No.1.

18. Call R and P.