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2013 DIGILAW 1096 (KAR)

GHOUSE SAB v. INDIRA BAI

2013-09-12

S.N.SATYANARAYANA

body2013
JUDGMENT S.N. SATYANARAYANA, J.-Plaintiff in O.S. No. 45/1995 on the file of Civil Judge (Jr. Dn.), Yelburga, has come up in this second appeal impugning the Judgment and Decree dated 16.10.2004 passed in R.A. No. 15/2004 (Old No. 44/2000) on the file of Fast Track Court, Koppal, wherein the Judgment and Decree dated 10.08.2000 passed in O.S. No. 45/1995 on the file of Civil Judge (Jr. Dn.), Yelburga, in decreeing the suit of the plaintiff is set aside and the said suit is dismissed on the ground of limitation and also holding that the agreement of sale under which suit for specific performance was filed is not proved. 2. This appeal is filed with a delay of 1001 days. Hence an application in I.A. No. 1/2007 is filed seeking condonation of the same. On going through the affidavit filed in support thereof, it is seen that the plaintiff in the original suit claims that he has entered into an agreement for purchase of suit schedule property from the husband of 1st defendant for valuable consideration of Rs. 5,000/-. It is stated that the plaintiff is working as an agricultural labourer under one Mohammed Sab on yearly contract basis and that after the Judgment and Decree passed in R.A. No. 15/2004, he had entrusted the entire file to the hands of his employer, Mohammed Sab along with vakalath. Though the said employer assured him that he would take complete responsibility of filing the appeal, he has failed to do so. It is only in the first week of September, 2007 when respondent No. 3 tried to interfere with his possession on the basis of non filing of appeal against the Judgment and Decree passed in R.A. No. 15/2004, it is stated that the appellant contacted Mohammed Sab. At that time he came to know that Mohammed Sab was not able to file the appeal in time as his younger brother expired and that he was suffering from ill-health. It is stated that therefore appellant immediately rushed to Koppal, contacted his advocate, secured certified copies of Judgment and Decree in R.A. No. 15/2004 on 26.09.2007 and made arrangements for filing of appeal and thereafter filed the appeal in the High Court at Bangalore, on 12.10.2007. 3. It is stated that therefore appellant immediately rushed to Koppal, contacted his advocate, secured certified copies of Judgment and Decree in R.A. No. 15/2004 on 26.09.2007 and made arrangements for filing of appeal and thereafter filed the appeal in the High Court at Bangalore, on 12.10.2007. 3. On going through the entire affidavit filed in support of the said application, it is clearly seen that it is a false affidavit with make believe reasons to get over the inordinate delay of 1001 days, i.e., nearly 2 years, 9 months. Considering the fact that this is a suit for specific performance and the plaintiff, who claim himself to be a purchaser of suit schedule land measuring 17 acres 22 guntas from the husband of 1st defendant under agreement of sale dated 11.01.1979 and that under the said agreement having secured possession of property, it is stated that he is in personal cultivation and enjoyment of the same. If that is to be accepted, then his statement that he is working under one Mohammed Sab as an agricultural labourer at Waddarkal Village, away from the place where suit schedule land is situated, cannot be believed. It cannot also be believed that when he has entered into an agreement for purchase of suit schedule land measuring 17 acres 22 guntas from the husband of 1stdefendant under agreement of sale dated 11.01.1979 with possession being with him and to state that he is working for somebody as an agricultural labourer clearly disclose anomaly in the plaint averment and as well as statement in the affidavit. 4. Even otherwise on going through the Judgment with reference to the pleadings, it is seen that the suit is filed in the year 1995 seeking specific performance of alleged agreement dated 11.01.1979. Even assuming that the said agreement is proved, filing of suit for specific performance after 16 years does not stand to reason as rightly held by the Lower Appellate Court. The finding of the Lower Appellate Court regarding execution of agreement in the facts and circumstances of the case also appears to be just and proper. Therefore this Court find that no justifiable grounds are made out to condone the inordinate delay of 1001 days and also to admit this appeal to consider the finding of the Lower Appellate Court. The finding of the Lower Appellate Court regarding execution of agreement in the facts and circumstances of the case also appears to be just and proper. Therefore this Court find that no justifiable grounds are made out to condone the inordinate delay of 1001 days and also to admit this appeal to consider the finding of the Lower Appellate Court. Accordingly the application filed in I.A. No. 1/2007 seeking condonation of delay of 1001 days is dismissed. Consequently the appeal is also dismissed. In view of the dismissal of the appeal, I.A. No. 2/2007 filed seeking stay also does not survive for consideration.