Orissa High Court
Shaikh Rehemtulla@ vs Huran Bibi And Others on 20 August, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 301 of 2019
An appeal under Section 100 Code of Civil Procedure.
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Shaikh Rehemtulla@ .... Appellant
Sk. Ramtulla@
Sk. Rehemtula
-Versus-
Huran Bibi and Others ..... Respondents
Advocate(s) appeared in this case:-
_______________________________________________________
For Appellant : M/s. S. Dash, S.K. Dwibedi
A.P. Bose, D.J. Sahoo &
S. Pati, Advocates
For Respondents : M/s. N. Lenka, H.K. Mohanta
P.K. Barik, Advocate
(for Respondent No.10)
M/s. A.R. Dash, A. Mohanta &
S. Kar, Advocate
(for R. 1 to 8)
M/s. L. Achari, S. Kanungo &
S. Mohapatra, Advocate
(for respondent No.9)
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
20.08.2025
SASHIKANTA MISHRA, J.
This is an appeal by Defendant No.1 of C.S. No.
486 of 2014 in the Court of learned Additional Senior Civil
Judge, Baripada, which was preliminarily decreed by the
trial court. Said judgement and decree being challenged
by Defendant No.1 before the 1st Appellate Court, the
appeal was dismissed on the ground of limitation.
2. For convenience, the parties are described as
per their respective status before the trial Court.
3. The plaintiffs filed the suit for partition of
schedule-B and B-1 properties as per the plaint schedule.
Their case, briefly stated, is that suit schedule 'B' land
stands recorded in the name of the Defendant No.1,
Plaintiff No.2 and Defendant No.2, who are sons of Sk.
Meheboob. Schedule B-1 land stands recorded in the
name of the Defendant No.1, Plaintiff No.2, Defendant
No.2, Plaintiff No.3, Plaintiff No.4 and the Plaintiff No.1.
The plaintiffs and Defendant Nos. 1 and 2 are the
members of the family of Sk. Meheboob, who is their
common ancestor. Sk. Mehboob died in the year 1981,
leaving behind his wife, i.e., Plaintiff No.1, five sons, i.e.,
Plaintiff Nos. 2 to 4 and Defendant Nos. 1 and 2 and four
daughters, i.e. Plaintiff Nos. 5 to 8. In the settlement
operation in the year, 1984, the names of the daughters of
Sk. Meheboob were not recorded in Khata No.102.
Similarly, in Hal settlement operation in the year 1986,
the names of Plaintiff Nos. 1, 3 and 4 and Plaintiff Nos. 5
to 8 were not recorded in Khata No.230. Defendant No.1
was looking after the matter of settlement and deliberately
avoided recording of the names of his sisters in the ROR.
After death of Sk. Mehebood, due to financial crisis, the
family members transferred some land to different
persons. The Plaintiff No.1 along with Plaintiff Nos. 2 to 4
and Defendant Nos.1 and 2 sold Ac. 0.05 decimals of land
to Defendant No.3. The Plaintiff Nos. 1 to 4 and Defendant
No.2 sold out some lands to Defendant No.4 to 6.
Defendant No.1 sold some land to Defendant Nos. 7 and 8
behind the back of the Plaintiffs, which are void being
without consent of the co-sharers. Having come to know
about the same, Plaintiff No.1 called her sons and
daughters and suggested for adjustment of the lands sold
from their respective shares but Defendant No.1 refused
to accede to such request. Hence, the suit for partition.
4. Upon receipt of notice, Defendant Nos. 1 and 2
appeared but did not file any written statement.
Defendant Nos. 5 and 6 were set ex-parte. Defendant No.7
appeared and filed written statement but was
subsequently set ex parte. Defendant Nos. 3 and 4 were
also set ex parte. Defendant No. 8 filed his written
statement challenging the plaint averments by stating
that the sale made by Defendant No. 1 to Defendant Nos.
7 and 8 is bonafide and that he is in peaceful possession
over his purchased land. Subsequently, he has also
transferred some land in favour of Dhabaleswar Sahu and
others and delivered possession. Basing on the rival
pleadings, the trial court framed the following issues for
determination:-
i) Whether the suit is maintainable in the eye of
law?
ii) Whether the plaintiffs have got any cause of
action to file the suit?
iii) Whether the suit is filed within the period of
limitation?
iv) Whether the suit is bad for non-joinder of
necessary parties?
v) Whether the suit property is liable for partition
and if so, what is the quantum of share of the
respective parties?
vi) To what other relief/reliefs the plaintiffs are
entitled to?"
5. After appreciating the oral and documentary
evidence on record, the trial court found that the Plaintiffs
have a valid cause of action to file the suit and the plea of
non-joinder raised by Defendant No.8 is not acceptable.
As regards the claim of partition, the trial court held that
the ancestral property had not been put to partition by
metes and bounds. Further examining the evidence on
record, it was held that the sale deeds executed in favour
of Defendant Nos. 3 to 8 are valid, which can be adjusted
from the share of Plaintiff Nos.1 to 4 and Defendant Nos. 1
and 2. After considering the law of inheritance and
succession as applicable to Sunni law, the trial court held
that the schedule 'C' to 'C-5' land shall be adjusted from
the share of the Plaintiff Nos.1 to 4 and Defendant Nos. 1
and 2. On such findings, the suit was preliminarily
decreed by holding that the Plaintiff No.1 alone is entitled
to get 1/8th share, Plaintiff Nos. 5 to 8 are entitled to
1/6th share each and Plaintiff Nos.2 to 4 and Defendant
Nos. 1 and 2 are entitled to get 1/8th share each over
schedule-B and B-1 land. It was further held that
schedule-'C' to 'C-5' land is to be adjusted from the share
of Plaintiff Nos. 1 to 4 and Defendant Nos. 1 and 2 to the
extent of land transferred by them on the basis of sale
deeds vide Exhibits-7 to 12.
6. Being aggrieved, Defendant No.1 preferred
appeal before the District Court. The appeal being filed
beyond the period of limitation, an application was filed
for condonation of delay as per Section-5 of the Limitation
Act. The delay was said to be 324 days and was sought to
be explained by the Defendant No.1 by citing the ground
of his personal illness. Medical certificate was appended
to the application for condonation. The 1st Appellate Court
however did not accept the ground cited for condonation
of delay on the ground of discrepancy therein as also for
the fact that the Appellant had appeared and filed
objection in the final decree proceeding during the period
he was supposedly ill. The application for condonation
was thus rejected and the appeal was dismissed being not
admitted.
7. Being further aggrieved, Defendant No.1 has
preferred the instant appeal, which was admitted on the
following substantial question of law:-
"Whether the lower appellate court in the
facts and circumstances and on the basis of the
document placed in support of the case of the
appellant as to existence of sufficient cause of not
filing the first appeal within the period of limitation
has erred both on fact and law in rejecting the
prayer for condonation of delay of 324 days in
filing the First Appeal holding that there was no
sufficient cause for the same."
8. Heard Mr. Sougat Dash, learned counsel for the
Defendant No.1-Appellant and Mr. Niranjan Lenka,
learned counsel appearing for the contesting respondents.
9. Mr. Dash argues that 1st Appellate Court did
not accept the medical certificate only on the technical
ground of absence of signature of the patient, which is not
tenable for the reason that there is no mandatory
requirement that the signature of the patient must be
endorsed on the medical certificate. The 1st Appellate
Court overlooked the name, designation and the seal
affixed by the doctor on the certificate, which was not
justified. Mr. Das further argues that it is common
knowledge that appearance in a proceeding by a party can
be through a counsel and therefore only because an
objection was filed on behalf of Defendant No.1 in the final
decree proceeding, it cannot be said that he was hale and
hearty at the relevant time.
10. Per contra, Mr. Lenka would argue that simply
enclosing a medical certificate, which does not reveal any
serious illness, Defendant No.1 cannot be said to have
exhibited sufficient cause for not filing the appeal earlier.
That apart, there is no reason as to why he could not file
the appeal earlier even though he had appeared and filed
objection in the final decree proceeding.
11. In view of the grounds urged in the
memorandum of appeal and the substantial question of
law framed, it is evident that the only question that falls
for consideration is whether dismissal of the appeal on the
ground of limitation by the 1st Appellate Court was correct
in the facts and circumstances.
12. Admittedly, the appeal was preferred after
324 days. Said period of delay was sought to be explained
by Defendant No.1 by citing the ground of his illness. The
1st Appellate Court has gone through the medical
certificate appended to the petition for condonation of
delay, which is also available in the lower court record.
The disease is mentioned as 'spondylosis'. The patient was
advised rest for one year. The certificate was issued on
19.03.2019. Further, the patient was said to be suffering
from the ailment since 20.04.2018.
13. After going through the certificate, this Court is
also not persuaded to accept the same as the same
appears to be too general in nature and does not
conclusively suggest that the mobility of patient was
affected or that he was actually confined to bed for whole
of the period of one year. This Court is surprised to note
that despite the professed illness, Defendant No.1
appeared in the final decree proceeding on 20.02.2019
and filed his objection. It has been argued that such
appearance and filing of objection was done through a
lawyer. Accepting such argument, this Court wonders as
to why the appeal could not be preferred through a
lawyer. Thus, if the Defendant No.1 was fit to have an
objection filed in the final decree proceeding there was no
reason as to why he could not have filed the appeal within
time.
14. After independently appreciating facts and the
materials on record, this Court is not inclined to find any
fault with the reasoning adopted by the 1st Appellate
Court to reject the application for condonation of delay
and consequently the appeal. The substantial question of
law is answered accordingly.
15. In the result, the appeal fails and is therefore,
dismissed.
...............................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 20th August, 2025/ B.C. Tudu, Sr.Steno
Signed by: BHIGAL CHANDRA TUDU
Location: Orissa High Court, Cuttack
Date: 20-Aug-2025 19:38:23
