JUDGMENT : S. Acharya, J. - The unsuccessful Defendants 1 to 10 in both the Courts below have preferred this second appeal against the judgment and decree passed by the District Judge, Balasore in S.J.A.N. 93 of 1967. I confirming the judgment and decree of the trial Court. 2. The Plaintiffs filed the suit for partition of the Kha and Ga schedule lands. The trial Court on an elaborate consideration and discussion of the evidence on record has arrived at the following findings : (1) The Ga schedule property was the separate and exclusive property of late Ganesh Jena, one of the four sons of Siba Jena, the common ancestor of the family, and that property has devolved exclusively on the legal heirs of Ganesh (Defendants 12 to 16), and so this property is not available for partition amongst the other three branches of Siba Jena; (2) In the Kha schedule property, Defendants 12 to 16 have no claim whatsoever, and the other three branches have each 1/3rd share in the same. (3) The Plaintiffs (Plaintiff No. 1 is the son of late Bishnu, one of the three other sons of the said Siba, and Plaintiffs 2 and 3 are the sons of Plaintiff No. 1) are entitled to 2/15th share in the Kha schedule property. Plaintiff No. 1 is entitled to 1/15th share in that property and Plaintiffs 2 and 3 together are entitled to another 1/15th share in that property purchased by them from Defendant No. 11. (4) The genealogical table as amended by the Plaintiffs after the remand of the suit is correct. 3. The Appellate Court has mostly confirmed the aforesaid findings of the trial Court and further held that the first appeal filed before it was barred by limitation. 4. At the hearing of this appeal Mr. De, appearing for Defendants 12, 13. 14 and 16 (some of the Respondents herein) at the outset urged that as the first appeal by the Appellants herein before the lower Appellate Court was barred by limitation, this second appeal preferred by the same persons was not maintainable in law. In this connection Mr. De, submits that the decree of the trial Court was passed on 9-9-1967, and taking into account seven days for obtaining the certified copy of the judgment and decree the appeal in the first Appellate Court should have been filed by 17-10-1967. In this connection Mr. De, submits that the decree of the trial Court was passed on 9-9-1967, and taking into account seven days for obtaining the certified copy of the judgment and decree the appeal in the first Appellate Court should have been filed by 17-10-1967. But that appeal was filed on 14-12-1967. The petition u/s 5, Limitation Act filed by the Appellants in that Court for condonation of the said delay was dismissed. Accordingly the appeal in the first Appellate Court was barred by limitation as found by the Appellate Court. This High Court issued notification No. 236 dated 23-11-1967 u/s 15, of the Bengal, Agra and Assam Civil Courts Act. 1887 to the following effect: In exercise of the powers vested in them u/s 15 of the Bengal. Agra and Assam Civil Courts Act, 1887 (Act XII of 1887) and in partial modification of the list of Civil Court holidays for the year 1967, published in the Court's notification No. 219-S, dated the 24th November. 1966 the High Court with a view to saving limitation in suits, cases and appeals which the litigant public of the flood affected areas could not have filed due to the serious condition arising out of the recent floods, are pleased to declare that the subordinate Civil Courts mentioned in the schedule below shall be deemed as closed for the period noted against each. SCHEDULE. 1. Civil Courts in the district of Balasore in the judgeship of Balasore ... From the 4th September, 1967 to the 30th November, 1967. 2. Civil Courts in the district of Mayurbhanj in the judgeship of Mayurbhanj-Keonjhar ... From the 4th September, 1967 to the 16th September, 1967. Mr. B. Ray, the learned Counsel for the Appellants, contended that because of the aforesaid notice the trial Court in the district of Balasore should be deemed to have remained closed from 4-9-1967 to 30-11-1967 for all intents and purposes and accordingly the decree signed on 9-9-1967 should be considered to have been signed on the 1st December, 1967, when the Courts formally reopened after their deemed closure for the aforesaid period in accordance with the aforesaid notification. Mr. Mr. Ray in this connection submitted that as the said notification was issued with a view to save limitation, the decree passed on any date from 4-9-1967 to 30-11-1967 should be considered to have been passed on 1-12-1967 in order to enable the parties to have full benefit of the period of limitation prescribed for an appeal against the said decree. Mr. Ray's above contention and submissions in that connection are not correct in view of the limited scope and ambit of the above quoted notification. From the language and text of the notification it cannot be said that the Courts mentioned therein should be deemed to have remained closed for all intents and purposes for the aforesaid period. That notification, as is evident therefrom, was made only for the purpose of saving limitation in suits, cases and appeals which the litigant public of the flood affected areas could not file due to the serious condition which prevailed during that time, as specifically mentioned in that notification. So, if any period of limitation for filing suits, cases and appeals expired during the aforesaid period (from 4-9-1967 to 30-11-1967), such matters could be filed on 1-12-1967 on the strength of that notification without any question of limitation. So the only effect of that notification was to extend the last date of filing such matters till 1-12-1967 in case the said last date fell within that period, and it is not capable of the wider interpretation given to it by Mr. Ray. Moreover, the Court which passed the decree was not in fact closed on 9-9-1967 when the decree was signed. Subsequently this High Court, by the said notification dated 23-11-1967, issued u/s 15 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Hereinafter referred to as 'the Act'), declared that the subordinate Courts mentioned in the schedule therein should be deemed as closed for the period noted against each. As per the provisions of Sub-clause (3) of Section 15 of the Act a judicial act done by a civil Court on a day declared as a closed holiday u/s 15 thereof shall not become invalid only because of such declaration. So the decree in this case, which was signed on a day when the Court factually and actually has not closed, continued to be a valid decree in all its aspects even inspite of the aforesaid notification. So the decree in this case, which was signed on a day when the Court factually and actually has not closed, continued to be a valid decree in all its aspects even inspite of the aforesaid notification. Accordingly, it cannot be said that the decree, actually signed on 9-9-1967, should be construed to have been passed on 1-12-1967 though the decree was validly drawn up and signed on 9-9-1967. On the above considerations Mr. Ray's contention is not tenable. The decisions cited by Mr. Ray are not of any help as they do not at all answer the point in issue. The first appeal therefore should have been filed on 1-12-1967, and so there was delay in its filing on 14-12-1967. 5. The Appellants, along with the memorandum of the first appeal, presented a petition u/s 5 of the Limitation Act in the Court below praying for the condonation of delay in filing the appeal on that date. Therein it has been stated that due to unprecedented floods in the locality during the relevant time the Appellants were very badly affected and could not go out any where from their village as their village was completely marooned and surrounded on all sides by High Flood water, and communication from their village to any other place was very badly affected and disrupted. It is also stated that because of the aforesaid afflicted conditions it was not at all possible for the Appellants to file the appeal on any earlier date. On a perusal of the averments made in this petition and on bearing the counsel for both parties I am satisfied that the Court below in dismissing that petition did not exercise its discretion in a reasonable and judicious manner. True it is that the Appellate Court in such matters would be slow to substitute its own assessment of things. But if it is shown that the Court below, in exercising its jurisdiction in such matters, has acted unreasonably, whimsically or capriciously or has ignored relevant facts and adopted an unjudicial approach, then this Court should interfere with the Appellate Court's order on such matters. In the Division Bench decision of the Punjab High Court reported in Inder Singh Des Raj and Others Vs. Harnam Singh Gian Singh Justice Dua in this connection says. In the Division Bench decision of the Punjab High Court reported in Inder Singh Des Raj and Others Vs. Harnam Singh Gian Singh Justice Dua in this connection says. It is correct that u/s 5 of the Indian Limitation Act it is the Court of appeal in which the appeal has been filed which has to be, satisfied that the Appellant bad sufficient cause for not preferring the appeal within the period prescribed therefore and, therefore, the discretion initially lies with that Court but it can hardly be disputed that the discretion vested in that Court has to be judicial and where it is not so the Appellate Court should and indeed in my opinion must interfere. In other words normally speaking the Appellate Court would be slow to substitute its own exercise of discretion for that of the Court below but when it is shown that the Court below has in exercising its discretion acted unreasonably or capriciously or has ignored relevant facts and adopted an unjudicial approach, then the Appellate Court would be entitled and perhaps also bound to interfere with the lower Court's discretion. In such cases the discretion exercised by the Court below can properly be described to the contrary to law and improper justifying interference by the Appellate Court. x x x x x x That the higher Court is entitled to interfere with the exercise of discretion of the lower Appellate Court when the latter has misdirected itself as to the law applicable to the case or when it has not been exercised judicially, is clear from the observations of the Privy Council in Brij Indar Singh v. Kanshi Ram ILR 45 Cal. 94. Justice Tek Chand reiterates the above view in the same decision in the following words: The next question is whether this Court as Court of second appeal can interfere with the exercise of discretion by the lower Appellate Court in allowing or rejecting an application for excusing delay. If the discretion has been exercised on sound principles and reasons and not arbitrarily fancifully or unreasonably this Court will stay its hands. The High Court has power in second appeal to examine the grounds upon which the District Judge has admitted the appeal beyond time. It has to see that the duty of exercising discretion in a judicial manner cast upon the lower Appellate Court has been discharged properly or not. The High Court has power in second appeal to examine the grounds upon which the District Judge has admitted the appeal beyond time. It has to see that the duty of exercising discretion in a judicial manner cast upon the lower Appellate Court has been discharged properly or not. If discretion has not been exercised at all, or has been exercised whimsically or arbitrarily, the Court of second appeal will be acting within the ambit of Section 100, Code of Civil Procedure, while interfering with such an order of the lower Appellate Court. There is ample authority for, the proposition that the question as to whether the facts and circumstances, constitute sufficient cause, is one of law and not of fact and can raised in second appeal. Vide Kishen Chand v. Mohammad Hussain AIR 1947 Lah. 76 AIR 1942 94 (Lahore) and AIR 1926 542 (Lahore) . 6. Considering the view of the two Hon'ble Judges in the above mentioned decision, with which I am in agreement, I am inclined to interfere with the decision of the Court below on this matter, as I am satisfied that the Court below has unreasonably dismissed the petition u/s 5 of the Limitation Act by ignoring relevant facts and by approaching the matter in an unjudicial manner. There is absolutely no doubt that because of heavy rains and consequential floods normal life in the villages to which the parties belong was very badly affected. This Court took note of 'the serious conditions' arising out of the floods in that area at that time and issued the aforesaid notification. There was nothing before the Court to contradict the averments in the aforesaid petition. The Court has not stated any reason whatsoever to disbelieve or to discard the statements made therein. It is quite evident from the relevant paragraph in the impugned judgment that the Court below completely ignored the relevant facts while dismissing the said petition. Considering the uncontested averments in the said petition and the conditions and reasons necessitating the issue of the aforesaid notification I am firmly of the opinion that there were sufficient reasons justifying condonation of the aforesaid delay of 13 days. Accordingly, the finding and the order of the Court below on this particular question are set aside and the aforesaid delay is hereby condoned. Thus Mr. Des above-mentioned contention is of no effect. Accordingly, the finding and the order of the Court below on this particular question are set aside and the aforesaid delay is hereby condoned. Thus Mr. Des above-mentioned contention is of no effect. This second appeal, therefore, is maintainable. 7. I do not consider it necessary to state in detail in this judgment the rival averments made in the pleadings of all the parties to the suit. 8. Mr. Ray for the Appellants (Defendants 1 to 10) urged that the findings of the Court below that Ganesh (referred to in the 2nd paragraph of this judgment) had separated from his three other brothers in mess and residence since a long time and was in exclusive possession of the 'Ga' schedule property on his own right till his death and thereafter Defendants 12 to 16, his legal heirs, continued to remain in exclusive possession of the said property, were not borne out on the evidence on record, and the said findings were liable to be set aside as the Courts below did not proceed to give a convincing finding regarding any partition between Ganesh and his three other brothers. Mr. Ray contends that in the absence of a finding regarding the aforesaid partition between Ganesh and his brothers, the Ga schedule property should not have been excluded from partition. On a perusal of the two judgments of the Courts below I am satisfied that Mr. Ray's above submissions and contention are not tenable as the factual basis of the same is not correct. The trial Court on a convincing consideration of the oral and documentary evidence on record inter alia finds that the Ga schedule property was not in the joint possession of the four branches and that the said property was in exclusive possession of Ganesh and his descendants Defendants 12 to 16; the said property was formerly Jagir property, and the Jagir having subsequently been abolished, the said property was settled exclusively with Ganesh on royati basis and rent thereof was assessed and paid by Ganesh and his descendants; the property was recorded exclusively in the name of Ganesh in the Provincial and Revisional Settlements, and now it stands recorded in the name of the descendants of Ganesh; and the same was not the ancestral property of the family. It took note of the fact that the Plaintiffs even admitted that Ganesh since long had separated himself from his other three brothers and he was in exclusive possession of the Ga schedule property and that only the Appellants allege that the said property was the joint family property. On a convincing discussion of the evidence it ultimately concluded that the 'Ga' schedule property was the separate and exclusive property of Ganesh and his descendants, Defendants 12 to 16, and the said property was not liable for partition amongst the three other branches of Siba. It is evident from the discussion of the matter in the impugned judgment that the court arrived at the aforesaid conclusion on the basis of its finding that Ganesh was completely separate in mess and property since long from his other three brothers. The Appellate Court again on independent and elaborate discussion and assessment of the relevant evidence on record has arrived mostly at the aforesaid conclusions. Some of its findings are that there is no evidence whatsoever to show that the Jagir had been acquired by the joint family of Ganesh prior to the Provincial Settlement; Hari, Bishnu and. Brahma, the three brothers of Ganesh, or their descendants never exercised any act of possession over the Ga schedule property during the last 67-68 years; during that period it was Ganesh and his descendants who exclusively exercised acts of possession over the Ga schedule property and paid rent for the same. In paragraph 7 of its judgment it has arrived at the finding that even before the Provincial Settlement Ganesh had separated himself from his other three brothers Hari, Bishnu and Brahma, who three continued to remain joint in mess and property. The property belonging to these three brothers stood jointly recorded in the Settlement records in the names of only these three brothers, in exclusion of Ganesh. In view of the aforesaid and other findings of the two Courts below to the above effect, the contention raised by Mr. Ray is of no avail. This question, as now raised by Mr. Ray in this appeal, was also not raised in any of the two Courts below. On the above considerations I do not find any merit in the above-mentioned contention raised by Mr. Ray. 9. Ray is of no avail. This question, as now raised by Mr. Ray in this appeal, was also not raised in any of the two Courts below. On the above considerations I do not find any merit in the above-mentioned contention raised by Mr. Ray. 9. Excepting the above-mentioned finding of the Appellate Court on the question of limitation which has been set aside for reasons stated above, all the other findings of fact of both the Courts have been arrived at on a lengthy, cogent and convincing discussion and consideration of the oral and documentary evidence on record. Mr. Ray could not successfully assail any of the aforesaid concurrent findings of fact on any proper and/or convincing ground. 10. In the result, therefore, the finding and conclusion of the Court below regarding the question of limitation as aforesaid are set aside, and all the other findings and conclusions of the Court below are confirmed. 11. The Second appeal thus succeeds only to the limited extent stated above. Both the parties to bear their own costs of this appeal.