Rajasthan High Court - Jodhpur

Lrs Of Kamal Kishore vs Pawan Kumar And Ors on 5 March, 2021

Bench: Arun Bhansali

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
             S.B. Civil First Appeal No. 460/2017
 1.     Legal Representatives Of Shri Kamal Kishore S/o Shri
        Ghamandilal


 1/1. Smt. Priyanka Widow of Lt. Sh. Kamal Kishore, aged
        about 39 years, R/o 2-E Block, Ward No.13, Srikaranpur,
        District Sriganganagar (Rajasthan).
 1/2. Garima Sharma D/o Lt. Sh. Kamal Kishore, aged about 17
        years, R/o 2-E Block, Ward No.13, Srikaranpur through
        her natural guardian mother Smt. Priyanka Widow of Lt.
        Sh. Kamal Kishore (Appellant No.1).
 1/3. Keshav Sharma S/o Lt. Sh. Kamal Kishore, aged about 15
        years, R/o 2-E Block, Ward No.13, Srikaranpur, through
        his natural guardian mother Smt. Priyanka Wd/o Lt. Sh.
        Kamal Kishore (Appellant No.1)
                                                                  ----Appellants
                                    Versus
1.    Pawan Kumar S/o Shri Ghamandilal, R/o 2-E Block, Ward
      No. 13, Srikaranpur, District Sriganganagar Rajasthan.
2.    Ghamandilal S/o Shri Hariram, R/o 2-E Block, Ward No. 13,
      Srikaranpur, District Sriganganagar Rajasthan.
3.    Smt. Narayani Devi W/o Ghamandi Lal, R/o 2-E Block, Ward
      No. 13, Srikaranpur, District Sriganganagar Rajasthan.
4.    Smt. Ritu D/o Ghamandi Lal, W/o Suresh Kumar, R/o
      Parshuram Nagar, Satnam Shah Chowk, Kanganpur Road,
      Sirsa Haryana.
                                                                ----Respondents


For Appellant(s)          :     Mr. Trilok Joshi.
For Respondent(s)         :     Mr. Aditya S. Rathore.


           HON'BLE MR. JUSTICE ARUN BHANSALI
                              JUDGMENT

05/03/2021

This appeal is directed against judgment and decree dated

2.5.2016 passed by Additional District Judge, Srikaranpur,

Sriganganagar, whereby, based on the compromise arrived at

(2 of 6) [CFA-460/2017]

between the parties, the suit for partition filed by respondent No.1

has been decreed by the trial court.

The appeal is reported as barred by limitation by 371 days.

An application has been filed under Section 5 of the

Limitation Act, 1963 seeking condonation of delay in filing the

appeal.

Submissions have been made that the compromise was

arrived at between the parties and was presented during illness of

Kamal Kishore - husband / father of the appellants and that after

the decree was passed on 2.5.2016, Kamal Kishore expired on

21.4.2017 and the appeal has been filed on 16.8.2017. It was

submitted that on account of illness and eventual death of Kamal

Kishore from the date of decree till filing of the appeal, the

appellants could not file the appeal in time.

An additional affidavit was filed in support of the application,

wherein, documents pertaining to kidney transplant in the year

2013 have been produced. However, apparently no document in

support of the fact that Kamal Kishore was not well from the date

of passing of the decree dated 2.5.2016, has been produced.

As the application filed under Section 5 of the Limitation Act

was wholly laconic and though additional affidavit was filed, the

same also did not deal with the period between 2.5.2016 to

16.8.2017 except for the fact that Kamal Kishore died on

21.4.2017, therefore, learned counsel for the appellants was

heard on merit of the appeal to find out if there was any

substance in the appeal to take the said aspect also into

consideration for disposal of the application under Section 5 of the

Limitation Act.

(3 of 6) [CFA-460/2017]

Learned counsel for the appellants made submissions that

the compromise was arrived at between the parties during illness

of deceased Kamal Kishore and that he has not been given his due

share by the impugned compromise decree and, therefore, the

appellants are aggrieved by the said decree.

A perusal of the order passed by the trial court indicates that

the plaintiff Pawan Kumar filed a suit for partition claiming 1/4 th

share in the suit property. Written statement was filed by

deceased - Kamal Kishore on 12.12.2015 inter alia accepting all

the averments made in the plaint and making the following

additional prayer:-

"7- ;g fd eq> izfroknh la[;k 3 }kjk viuk mDr fgLlk 12&[email protected] X 31&[email protected] QqV vius nksuksa cPpksa iq=h xfjek 'kekZ ,oa iq= ds'ko ds gd esa viuk fgLlk NksMrk gSA eq> izfroknh ds fgLlk esa vk;k mDr edku esjs nksuksa cPpksa iq=h xfjek 'kekZ ,oa iq= ds'ko ds uke fd;k tkosA vr% tokc nkok is'k djds fuosnu gS fd nkok ds vuqrks"k ,oa utjh uD'ks ds vuqlkj vxj oknh dk nkok fMxzh fd;k tkos ,oa eq> izfroknh ds fgLlk esa vk;k mDr edku esjs nksuksa cPpksa iq=h xfjek 'kekZ ,oa iq= ds'ko ds uke fd;k tkosA vkidh vfr d`ik gksxhA"

Rest of the defendants also filed written statement on

12.12.2015 accepting the averments made in the plaint and

praying that decree be passed based on the site map produced.

Defendant No.4 - sister made additional submission that she has

(4 of 6) [CFA-460/2017]

released her share in favour of the defendants and that she

doesn't want any share in the suit property.

Whereafter, the compromise signed by all the parties was

presented on 12.12.2015, i.e. the same date on which the written

statements were filed in the following terms:-

"vuoku lnj ds eqdnek esa ge i{kdkjku esa yksd vnkyr dh Hkkouk ls jkthukek dj fy;k gS rFkk ge i{kdkjku ds e/; mijksDr edku jkthukek esa fuEu izdkj ls mijksDr edku dk ?k: caVokjk fd;k gqvk gSA ftlds eqrkfcd edku dk mrjh 12&[email protected] fgLlk oknh iou dqekj ds fgLlk esa rFkk mlds i'pkr~ oknh ds fgLlk ds lkFk fpirk nf{k.k dh rjQ dk 12&[email protected] fgLlk oknh dh ekrk izfroknh la[;k 2 ukjk;.k nsoh ds fgLlk esa rFkk ukjk;.k nsoh ds fgLlk ds i'pkr~ nf{k.k dh rjQ 12&[email protected] QqV fgLlk oknh ds firk ds izfroknh la[;k 1 ?ke.Mh yky ds fgLlk esa rFkk ?ke.Mh yky ds fgLlk ds i'pkr~ 'ks"k 12&[email protected] QqV izfroknh dey fd'kksj ds fgLlk esa vk;k gqvk gS rFkk izfroknh la[;k 3 dey fd'kksj ds fgLlk esa vkbZ txg 12&[email protected] X 31&[email protected] QqV dks izfroknh la[;k 3 dey fd'kksj vius nksuksa cPpksa iq=h xfjek 'kekZ ,oa iq= ds'ko ds gd esa viuk fgLlk NksMrk gS rFkk mDr fgLlk dks izfroknh la[;k 3 dey fd'kksj ds nksuks cPpksa iq=h xfjek 'kekZ ,oa iq= ds'ko dks fn;k tkosA fygktk jkthukek vuqlkj nkok fMxzh fd;k tkuk U;k; laxr gSA"

The Presiding Officer verified the contents of the compromise

from all the parties and again obtained signatures of all the parties

on the order sheet on the same date i.e. 12.12.2015.

(5 of 6) [CFA-460/2017]

Whereafter, on 2.5.2016 i.e. after about 5 months from the

date the verified compromise was filed, the decree was passed in

the following terms:-

"fygktk oknhx.k dk okn foL) izfroknhx.k c:os jkthukek Lohdkj dj fMØh fd;k tkrk gS vkSj jkthukek ds vuqlkj lEifRr;ksa dk foHkktu bl izdkj fd;k gS fd & fookfnr edku dk ?k: caVokjk ds eqrkfcd edku dk mRrjh [email protected]&2 fgLlk oknh iou dqekj dks rFkk mlds i'pkr okmnh ds fgLLkk ds lkFk fpirk nf{k.k dh rjQ dk 12&[email protected] QqV fgLlk oknh dh ekrk izfroknh laŒ 2 ukjk;.kh nqoh ds fgLlk ds i'pkr nf{k.k dh rjQ 12&[email protected] QqV fgLlk oknh ds firk izfroknh laŒ 1 ?keaMh yky dks rFkk ?keaMh yky ds fgLlk ds i'pkr 'ks"k 12&[email protected] QqV tks izfroknh dey fd'kksj ds fgLlk esa vk;k gS o izfroknh laŒ 3 dey fd'kksj ds dFkukuqlkj dey fd'kksj ds fgLlk esa vkbZ txg 12&[email protected] bUVw 31&[email protected] QqV dk izfroknh la- 3 dey fd'kksj ds nksuksa cPpksa iq=h xfjek 'kekZ ,oa iq= ds'ko dks fn;k tkrk gSA mDrkuqlkj fMØh ipkZ cuk;k tkosA"

It is not the case of the appellants that after filing of the

written statement and the compromise on 12.12.2015, which was

verified by the Presiding Officer, till 2.5.2016, any application was

filed by the deceased - Kamal Kishore seeking to resile from the

said compromise and/or the written statement.

In view of the fact that the compromise had been arrived at

based on the written statement as filed by deceased - Kamal

Kishore, which is not disputed and finally the decree has been

passed in terms of the prayer made in the suit, written statements

(6 of 6) [CFA-460/2017]

and the compromise arrived at between the parties, there is

hardly any ground in the appeal so as to seek interference in the