Godavari Baliram Pawar vs Punjaji Madhav Narewad And Anr
2021 Latest Caselaw 13714 Bom

                                                                  907-ca-6974-2012.odt


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                     907 CIVIL APPLICATION NO.6974 OF 2012
                               IN SAST/11989/2012

                    GODAVARI BALIRAM PAWAR
                                VERSUS
               PUNJAJI MADHAV NAREWAD AND ANR
                                    ...
Advocate for Applicant : Mr. S. R. Bagal h/f Mr. Gadegaonkar Bharat N.
        Advocate for Respondent No.1 : Mr. Badakh Vishal S.
                                    ...

                                   CORAM        : SMT. VIBHA KANKANWADI, J.

                                   DATE         : 23.09.2021

ORDER :-


.        Present civil application has been filed for getting the delay of 706

days condoned in filing second appeal. The applicant is the original

plaintiff, who had filed Regular Civil Suit No.53 of 2007 before the

learned Civil Judge Junior Division, Hadgaon, Dist. Nanded for

declaration of ownership and perpetual injunction. The said suit came

to be dismissed on 25.06.2009. The present appellant challenged the

said judgment and decree by filing Regular Civil Appeal No.97 of 2009

before the District Court Nanded. The said appeal was heard by learned

Principal District Judge, Nanded and was dismissed on 27.01.2010. The

applicant intended to file second appeal, however, there is delay of 706

days. Hence, this application.

907-ca-6974-2012.odt

2. Heard learned Advocate Mr. S. R. Bagal holding for learned

Advocate Mr. B. N. Gadegaonkar for the applicant and learned Advocate

Mr. V. S. Badakh for respondent No.1

3. It has been vehemently submitted on behalf of the learned

Advocate for the applicant that the applicant is a poor lady coming from

a very small village. In fact, during the pendency of the appeal,

injunction was granted in favour of the applicant and respondents were

restrained from disturbing the peaceful possession of the plaintiff over

the suit property. Her rights were protected, however, in January, 2012,

respondents tried to take peaceful possession and thereby interfered

with her possession. Therefore, she made inquiry with her lawyer at

Nanded and then came to know about the dismissal of the appeal on

2010. According to her, till that date, she had no knowledge about the

decision by the first Appellate Court. After the said knowledge, she

collected the certified copies and with arrangement of funds for payment

of Court fees as well as litigation expenses, she approached to this Court

in February, 2012. According to the applicant, the delay is due to lack of

knowledge and money and, therefore, he prayed for condonation of

delay.

4. Learned Advocate for the respondent strongly opposed the

application by submitting that no reasonable much less sufficient ground

907-ca-6974-2012.odt

has been shown to condone the delay of 706 days.

5. At the outset, it is to be noted that the duty of the appellant would

not have ended when as per her contention that the interim injunction

was granted during the pendency of appeal. She ought to have been in

contact with her Advocate from time to time. Further, she is making

allegation that her Advocate had not informed about the decision of the

appeal to her. This has not been so stated in specific words, but then in

other words, she has tried to state that she had no knowledge about the

decision in the appeal. If she has not contacted her Advocate, then she

will have to blame herself. Another fact which is not convincing is that

though the appeal was decided on 27.01.2010, if respondents had the

intention to disturb her possession, why whey would have waited for

two years to do so. She is attributing the knowledge about the decision

of the appeal in January, 2012. Therefore, this date or period of

knowledge as claimed is also not convincing. There is huge delay and

one of the reason as aforesaid regarding knowledge is not convincing.

The second reason is regarding collection of amount for the Court fees

and the litigation expenses. It is to be noted that the suit was for

declaration and injunction. The Court fee that is paid is Rs.220/-. For

such amount, it cannot be said that she would have required so much of

period. Reliance can be placed on the decision of this Court in Kamalbai

907-ca-6974-2012.odt

w/o Narasaiyya Shrimal and another Vs. Ganpat Vithalrao Gavare,

[2006 SCC OnLine Bom 1126], wherein it has been observed that :-

"Delay cannot be condoned only because it is unintentional. So also, mere poverty cannot be a ground for condonation of delay.

The expression "sufficient cause" cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation."

6. Therefore, no reasonable ground has been shown for condoning

the delay and, therefore, the said application deserves to be rejected.

7. Even if, for the sake of arguments, we proceed further and hold

that reasonable ground was shown, then it is required to be seen as to

whether substantial questions of law can be framed in this case.

Submissions on behalf of both the parties have been heard on this point

also.

8. Learned Advocate for the appellant has submitted that both the

Courts below have not considered the evidence, pleadings and

submissions properly. He submitted that the suit property was the

ancestral property of the plaintiff and the basic ownership is not

challenged by the defendants, but they were challenging the boundaries.

Both the Courts below did not consider the evidence, therefore, in

907-ca-6974-2012.odt

proper perspective and went on to discuss about the boundaries and not

in respect of the possession. According to him, therefore, substantial

questions of law are arising, whereas the learned Advocate for the

respondent supported the reasons given by both the Courts below and

submits that no substantial questions of law are arising.

9. At the outset, it is to be noted that the defendants had challenged

the ownership of the plaintiff of the land of which description was given

with boundaries by the plaintiff in her plaint. They had also denied the

theory of partition as projected by the plaintiff. According to them, the

suit property is a joint family property of plaintiff's husband, her sons

and her mother-in-law. They had then further contended that the

husband of the plaintiff had sold 60 R land of East-South corner in the

year 1996 to one Rajasinh. Those boundaries have been given, which

was put to sale by the husband of the plaintiff. Thereafter, again on

29.08.1997, the husband of the plaintiff had sold 81 R land out of

remaining 2 H 80 R to one Hidayatkha. Those boundaries are also

mentioned. Further, in the year 1999, Baliram i.e. husband of the

plaintiff repurshased 81 R land from Hidayatkha in the name of his son

on 07.06.1999 and again Baliram purchased 20 R land which was

earlier sold to Rajasinh. Therefore, the defendants contended that the

joint family headed by Baliram was the owner of 3 H land. The

907-ca-6974-2012.odt

defendants further contended that Baliram had sold 49 R land to

defendant No.2 Shantabai and after that sale-deed, according to the

defendants, Baliram was the owner of land to the extent of 2 H 51 R out

of Gut No.287. Plaintiff, in fact, had contended that her husband had

effected partition of the ancestral property in the year 1991-1992,

wherein she was allotted total area of 1 H 70 R of which boundaries

were given by her and in the capacity of owner thereof, she had filed the

said suit. Taking into consideration these contentions, specific issue was

framed regarding ownership and possession of the plaintiff. Both the

Courts below have considered not only the oral evidence but also the

documentary evidence that has been produced on record. This Court, by

order passed on the last occasion, had directed the appellant to produce

the paperbook of the first Appellate Court, however, learned Advocate

for the appellant has expressed his inability. Therefore, we are

constrained to go by the two impugned judgments. It appears that the

details of the partition that had allegedly taken place in the year 1991-

1992 has not been given by the plaintiff. There could not have been

partial partition restricting it to the plaintiff only. It appears that the

plaintiff deposed that the said partition had taken place in presence of

her brothers, but it has been observed by the Trial Court that those

persons have not been examined. One of the adjacent holder has been

907-ca-6974-2012.odt

examined, but he is giving the different story that since the husband of

the plaintiff was habitual drinker and involved in gambling, plaintiff

asked her share to be separated. In fact, it is against the law. The wife

cannot ask the husband to separate her share during the lifetime of the

husband. Further, this itself is also an improvement and not the case of

the plaintiff. Suffice it to say that there is no such concrete, cogent and

material evidence to show the ownership of the plaintiff much less the

possession. In other words, no such specific evidence was adduced to

show that there was legal partition between all the holders and the area,

of which boundaries have been given by the plaintiff, was put to her

ownership and possession and, therefore, both the Courts taking into

consideration the facts of the case correctly held that the plaintiff has

failed to prove her ownership and possession. The findings are not

perverse and, therefore, not leading to any substantial questions of law

as contemplated under Section 100 of Code of Civil Procedure.

10. Thus, even if we hold that the application for condonation of

delay could have been allowed, yet, there was no merit in the second

appeal. Hence, the civil application stands dismissed.

[SMT. VIBHA KANKANWADI, J.]

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