Research › Search › Judgment

Madhya Pradesh High Court · body

2004 DIGILAW 351 (MP)

SHOSHERBAI v. BALMUKUND

2004-04-08

S.SAMVATSAR

body2004
S. S. SAMWATSAR, J. ( 1 ) THIS appeal is filed by the plaintiff, challenging judgment and decree dated 19-10-84, passed by Addl. District Judge, Neemuch to the Court of District Judge, Mandsaur in C. A. N. 27-A of 70, whereby the appellate Court has reversed the judgment and decree dated 9-5-70 passed by Civil Judge, Class II Neemuch in c. S. No. 95-A of 66. ( 2 ) THE brief facts of the case are that the appellant-plaintiff has filed the present suit for declaration of his title and injunction, alleging that the suit property was owned, by Sevaji. Sevaji died in Samvat 1993, leaving behind three sons Devram, balmukund and Prabhulal. Plaintiffs No. 1 to 4 are heirs of Devram. Prabhulal is plaintiff no. 5 and Balmukund is the defendant in the suit. The plaintiff has alleged that there was a partition between the three brothers and in spite of the said partition the defendant Balmukund is interfering in their possession and is claiming partition of the property. ( 3 ) THE defendant filed his written statement denying the fact that there was any partition of the property of Sevaji and he has, therefore, filed an application before the revenue Authorities for partitioning the property which is agricultural land. ( 4 ) THE trial Court found that there was already a partition between the family and decreed the suit. The Appellate Court reversed the finding of the trial Court and dismissed the suit. Hence this appeal. ( 5 ) THIS appeal is admitted by this Court on following substantial questions of law:1. Whether on the facts and in the circumstances of the case, the lower appellate court has erred in holding that the appeal was filed within the period of limitation and was not barred by limitation?2. Whether on the facts and in the circumstances of the case, the finding of the lower appellate Court, is vitiated on the ground that it has ignored material evidence on record?" ( 6 ) AS regards question No. 1 is concerned, Shri Sanghi, learned counsel for appellant, submitted that the appeal filed by the defendant was barred by limitation and the Appellate Court has erred in hearing the appeal on merits, contrary to the directions passed by this Court in S. A. No. 544 of 73, decided on 5-3-84. From the perusal of the judgment in S. A. No. 544 of 73, it appears, that the appeal was filed by the respondents before the first appellate Court along with an application under S. 5 of the limitation Act for condonation of delay. This application was not decided by the first Appellate Court while disposing of the appeal, and deciding it on merits. Hence this Court remanded the matter to the First Appellate court with a direction to decide the application under S. 5 of the Limitation Act. ( 7 ) THE First Appellate Court, after the remand, found that the trial Court has passed the judgment and decree on 9-5-70, which was the last day before the summer vacation. The Courts reopened on 15-6-70. The application for certified copy was submitted on 15-6-70 and the appeal was filed on 10-7-70. The Appellate Court relying on the judgment of this Court in case of Lalta prasad v. Shyam Mohan, 1961 JLJ, 150 : air 1961 M 244 has held that If the judgment is pronounced on a date followed by holiday and the application for certified copy is filed after the opening day, then the appellant is entitled to the days spent in the holiday and the appeal filed on the basis of the certified copy for which an application was filed after reopening is within limitation. The Appellate Court, therefore, by order dated 31-7-84 has held that the appeal itself was within limitation, hence the application under S. 5 of the Limitation Act was not necessary and disposed of the application. ( 8 ) SHRI Sanghi submits that this order is beyond the scope of remand order. According to him the Appellate Court had no Jurisdiction to travel beyond the scope of the remand order passed by this Court in S. A. No. 544 of 73 dated 5-3-84 by which this Court has directed the Appellate Court to decide the application under S. 5 of the Limitation act. The Appellate Court was, therefore, required to decide the application under S. 5 one way or other, but could not hold that the appeal is within limitation, the only question open before the Appellate Court was either to condone the delay or to dismiss the application. ( 9 ) I am not convinced with the arguments advanced by Shri Sanghi. The Appellate Court was, therefore, required to decide the application under S. 5 one way or other, but could not hold that the appeal is within limitation, the only question open before the Appellate Court was either to condone the delay or to dismiss the application. ( 9 ) I am not convinced with the arguments advanced by Shri Sanghi. It is true that the first Appellate Court cannot travel beyond the direction issued by this Court while remanding the appeal. The direction in the present case to the First Appellate Court was to decide the application under S. 5 of the limitation Act. The Appellate Court reached to the conclusion that the appeal itself is within limitation and, therefore, disposed of the application under S. 5. Thus, the application is decided by the First Appellate Court as per the direction of this Court. Therefore, it cannot be said that the First Appellate court had travelled beyond the scope of the remand order. ( 10 ) THE next contention raised by Shri sanghi is that the First Appellate Court erred in holding that the appeal is within limitation. According to him, the appellant was not entitled to the period of vacation as he has not applied for the certified copy before the opening of the Court. According to him no limitation is prescribed for filing an application for certified copy. Hence the appellant is not entitled to the benefit of S. 12 of the Limitation Act. For this purpose Shri sanghi relied on a judgment of this Court in case of Kanhaiyalal v. Ramkishan and others, AIR 1966 MP 340 in which this Court has held that if certified copy is applied for after the reopening of the Court, then the appellant shall not be entitled to get the benefit of the vacation and the appeal will be barred by limitation. Shri Sanghi submits that the view taken by the aforesaid judgment is based on the judgment of the privy Council, AIR 1935 PC 85 and the view taken in an earlier judgment i. e. Lalta Prasad (supra) is taken without considering the judgment of the Privy Council. ( 11 ) THUS, it appears, there is a conflict of opinion in these two judgments of the Single bench of this Court. ( 11 ) THUS, it appears, there is a conflict of opinion in these two judgments of the Single bench of this Court. However, in any event there was sufficient cause for the appellant to believe that the appeal is within limitation as there is a Single Bench decision in his favour in Lalta Prasad (supra ). In such circumstances the application filed by the appellant before the First Appellate court should have been allowed by the First appellate Court and even if the Appellate court has held that the appeal is within limitation this Court can hold that in any event the application filed by the appellant under S. 5 of the Limitation Act deserves to be allowed and if there is any delay the same stand condoned. ( 12 ) AS regards merits of the case is concerned, the appellate Court has, after appreciating the evidence has found that there was no previous partition between the parties and the suit was merely to obstruct the application filed by the defendant for partition before the Revenue Authorities. Thus the view taken by the First Appellate Court on merits is based on appreciation of evidence. ( 13 ) IN the result this appeal fails and is dismissed, but without any orders as to costs. Appeal dismissed. .