Sunil Kumar Pandey vs Narendra Pandey
2022 Latest Caselaw 4386 Jhar

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    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          S.A. No. 1 of 2017
                                  With
                         I.A. No. 9277 of 2017
    Sunil Kumar Pandey                               ...   ...     Appellant
                           Versus
    1.    Narendra Pandey
    2.    Sumit Kumar Pandey
    3.    Priyanka Pandey                            ...   ...     Respondents
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CORAM : HON'BLE DR. JUSTICE S.N. PATHAK

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For the Appellant : Mr. Manjul Prasad, Sr. Advocate Mr. Rohitashya Roy, Advocate For the Respondents : M/s Saket Upadhyay, Prabhat Singh, & Rahul Kumar, Advocates

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18/ 03.11.2022 Heard learned senior counsel for the appellant and learned counsel for the respondents.

This Second Appeal has been preferred against the judgment dated 22.12.2014 and decree signed on 3.1.2015, passed by learned Principal District Judge, Dhanbad, dismissing the Title Appeal No. 71 of 2011 and upholding and affirming the judgment dated 25.7.2011 and decree signed on 4.8.2011, passed by the learned Munsif-II, Dhanbad, in Title (Partition) Suit No. 57 of 2007, whereby suit of plaintiff has been decreed on contest.

This second appeal has been filed by the defendant- appellant after a delay of 653 days, and for condoning the delay, I.A. No. 9277 of 2017 has been filed.

Learned senior counsel appearing for the appellant submits that the delay in preferring the second appeal is neither intentional nor deliberate. Learned counsel submits that the plaintiff filed the suit for partition of the suit property by appointment of a survey knowing pleader commissioner. The defendant-appellant appeared in the suit and submitted that since there has already been a mutual partition, in terms of which, the plaintiff constructed her house, therefore, there is no unity of title and possession between the parties. Learned senior counsel further submits that after the judgment and decree was passed by the learned appellate court, the appellant sought advice from the conducting counsel of title appeal. Thereafter, the

appellant was under the impression that judgment and decree was only a formal demarcation which will not disturb the existing possession of the parties and there is no requirement of preferring any appeal. But, in the meantime, final decree was executed and on 22.11.2016, an order was passed in Execution case for calling the police force to execute the decree passed in final decree proceeding. Thereafter, again the appellant took legal advice from the learned advocate at Ranchi and after arranging all sources, this second appeal has been filed before this Court. Hence, the appellant was prevented from sufficient cause in preferring the appeal in time.

On the other hand, learned counsel appearing for the respondents submits that only ground of taking legal advice has been taken by the appellant in the entire limitation petition and no sufficient cause has been shown and hence, the same is fit to be dismissed.

I have gone through the impugned judgments and also the limitation petition. Neither there is any merit in this appeal nor sufficient cause has been made out for condonation of delay. Moreover, there is concurrent findings of both the Courts below and I find that there is no illegality or any infirmity in the orders / judgments passed by the learned Courts below.

Therefore, the limitation petition is rejected. Consequently, this appeal is also dismissed, being hopelessly time barred.

(Dr. S. N. Pathak, J.) R.Kr.