Sahba (Died) Thr. Its Lrs. Smt. ... vs Ataru
2022 Latest Caselaw 12143 MP

                                                       1
                                    IN THE HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                       BEFORE
                                     HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                             ON THE 13th OF SEPTEMBER, 2022

                                          SECOND APPEAL No. 1072 of 2020

                                 BETWEEN:-
                            1.   SAHBA (DIED) THR. ITS LRS. SMT. CHAMPA BAI
                                 W/O SAHBA GOND, AGED ABOUT 70 YEARS,
                                 OCCUPATION: HOUSE WIFE BANDHI POST
                                 SONPUR    TEHSIL AMARWARA (MADHYA
                                 PRADESH)

                            2.   SANTOSH S/O SAHBA GOND, AGED ABOUT 37
                                 YEARS, OCCUPATION: AGRICULTURE BANDHI
                                 POST SONPUR TEHSIL AMARWARA (MADHYA
                                 PRADESH)

                            3.   MONTOSH S/O SAHBA GOND, AGED ABOUT 37
                                 YEARS, OCCUPATION: AGRICULTURE BANDHI
                                 POST SONPUR TEHSIL AMARWARA (MADHYA
                                 PRADESH)

                            4.   KANTI BAI D/O SAHBA GOND, AGED ABOUT 50
                                 Y E A R S , OCCUPATION: W/O  RAMSINGH
                                 MASRAM       KHAPA BHAAT TEHSIL AND
                                 DISTT.CHHINDWARA (MADHYA PRADESH)

                            5.   SHANTI BAI D/O SAHBA GOND, AGED ABOUT 48
                                 YEARS, OCCUPATION: W/O SOHANLAL INWATI
                                 PIPARPANI POST SONPUR TEHSIL AMARWARA
                                 (MADHYA PRADESH)

                            6.   SAROJ D/O SAHBA GOND, AGED ABOUT 46
                                 YEARS, OCCUPATION: W/I SIKANDAR DHURVE
                                 PIPARPANI POST SONPUR TEHSIL AMARWARA
                                 (MADHYA PRADESH)

                            7.   SUMANTRA D/O SAHBA GOND, AGED ABOUT 44
                                 YEAR S, OCCUPATION: W/O SIRJLAL INWATI
                                 DHODAKUHI      POST   SONPUR     TEHSIL
                                 AMARWARA (MADHYA PRADESH)

                            8.   SABITA D/O LATE SAHBA GOND, AGED ABOUT
                                 35   YEARS, OCCUPATION: W/O GYASRAM
                                 INWATI NIHUA POST GHANAURA TEHSIL
                                 HARRAI (MADHYA PRADESH)
Signature Not Verified
Signed by: KUMARI PALLAVI
SINHA
Signing time: 9/14/2022
10:28:03 AM
                                                                2

                                                                                           .....APPELLANTs
                                       (BY SHRI BHANU PRATAP YADAV-ADVOCATE)

                                       AND
                            1.         ATARU S/O MOHANSI GOND, AGED ABOUT 60
                                       YEARS, VILLAGE BANDHI TEHSIL AMARWARA
                                       POST SONPUR DISTT. CHHINDWARA (MADHYA
                                       PRADESH)

                            2.         JATIRAM S/O MOHANSI GOND, AGED ABOUT 45
                                       YEARS, VILLAGE BANDHI TEHSIL AMARWARA
                                       POST SONPUR DISTT. CHHINDWARA (MADHYA
                                       PRADESH)

                            3.         CHATRU S/O MOHANSI GOND, AGED ABOUT 40
                                       YEARS, VILLAGE BANDHI TEHSIL AMARWARA
                                       POST SONPUR DISTT. CHHINDWARA (MADHYA
                                       PRADESH)

                            4.         NAKLU S/O MOHANSI GOND, AGED ABOUT 35
                                       YEARS, VILLAGE BANDHI TEHSIL AMARWARA
                                       POST SONPUR DISTT. CHHINDWARA (MADHYA
                                       PRADESH)

                            5.         STATE OF MADHYA PRADESH THROUGH
                                       COLLECTOR DISTT.CHHINDWARA (MADHYA
                                       PRADESH)

                                                                                         .....RESPONDENTS
                                       (BY SHRI RAJESH SHARMA-PANEL LAWYER FOR RESPONDENT
                                       5-STATE)

                                  Th is appeal coming on for hearing this day, t h e court passed the
                            following:
                                                                ORDER

Heard on I.A. No. 7829/2020, which is an application under Section 5 of the Limitation Act for condonation of delay in filing the second appeal.

2. Office has reported the appeal to be barred by 4055 days.

3. This second appeal has been filed against the final order dated 31.10.2008 passed by learned Additional District Judge Amarwada, District Chhindwara in miscellaneous case No. 61/06 (2/08 new) whereby civil appeal Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 9/14/2022 10:28:03 AM

filed by the present appellants' ascendant Sahba has been dismissed, as barred by limitation, which arose out of judgment & decree dated 28.02.2006 passed by Civil Judge Class-II, Amarwada whereby the defendant 1-Sahba was held to be owner/bhoomiswami of 1/2 share and suit filed for declaration of title and permanent injunction was decreed.

4. Condonation of delay has been sought on the ground that appellant-Sahba was looking after the case and his family members were not aware of the legal proceedings and after the death the counsel also did not inform about the decision given by first appellate Court and only on 10.02.2020 when the respondents started making interference in peaceful possession of the appellants and told about the final order/judgment & decree passed by lower appellate Court then they came to know about the same and thereafter, they applied for certified copy of the order on17.02.2020, which they received on 24.02.2020 and came to know that the appeal has been dismissed on the ground of limitation. It is contended in the application that the appellants are villagers and illiterate persons and are not well versed with the law and legal technicalities. It is contended that the delay in filing the appeal is bonafide, which deserves to be condoned and the appeal be treated within limitation.

5. Bare perusal of the application shows that nowhere in the application it is mentioned that when Sahba died and who was the counsel

before the Court below and when they contacted to him, has also not been mentioned. Even otherwise, looking to the genealogical tree given at the backside of page No.1 of the judgment & decree of trial Court, it is clear that Sahba was having only 1/2 share and no illegality appears to have been committed by trial Court in passing the decree and it appears that just to protract the litigation, the appellants are filing the appeal with delay, which in Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 9/14/2022 10:28:03 AM

absence of any sufficient ground cannot be condoned.

6. In view of the aforesaid the application (I.A. No. 7829/2020) filed under Section 5 of the Limitation Act deserves to be and is hereby dismissed.

7. Consequently, the second appeal is also dismissed.

(DWARKA DHISH BANSAL) JUDGE Pallavi

Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 9/14/2022 10:28:03 AM