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2014 DIGILAW 27 (MP)

Harilal v. Bramha Bai

2014-01-07

SANJAY YADAV

body2014
JUDGMENT 1. Heard on admission. Perused the records. 2. This second appeal at the instance of plaintiff directed against the order dated 20.9.2012 passed by Second Additional District Judge, Mandla rejecting the application for condonation of delay of eleven months in filing an appeal against Judgment and Decree date 29.4.2011 passed in Civil Suit No.45-A/2009; consequently, dismissing the appeal and affirming the judgment and decree by the trial Court. 3. The suit filed by the appellant/plaintiff was for declaration of title and consequential relief of perpetual injunction in respect of suit land of Khasra Nos.76, 281, 272, 316, 285 and 303 area 1.420, 0.259, 0.410, 0.090, 4.480 and 2.890 total area 9.290 hectare in village Bodasilli tahsil and District Mandla M.P. and for declaring the sale deed executed by respondents No.1 and 2 in favour of respondents No.3, 4 and 5 as null and void. The suit was filed on the ground that the suit land belonged to appellant's grand father's brother who had no sons and adopted the appellant under custom of "Balpos" allegedly prevalent among aboriginal Gonds. The suit land was, however, mutated in the name of Samoti Bai daughter of appellants' grand fathers' brother, Chamra, who vide registered gift deed (Bakshishnama) dated 11.12.1968 gifted in the name of the appellant and his brothers respondents No. 6 and 7 (defendants No.6 and 7). That respondent/defendant No.1 Bramhabai, wife of the appellant, grand daughter of Chamra, got her name mutated over the suit land and transferred the suit land of Khasra No. 78 area 0.40 hectares to respondent, defendant No.3 by registered sale deed dated 25.8.2007, Khasra No.285 area 1.10 hectares to respondent/defendant No.4 by registered sale deed dated 24.8.2007 and Khasra No.285 area 1.10 hectare to respondent/defendant No.5 by sale deed dated 24.8.2007. 4. The defendants remained ex-parte. The trial Court dismissed the suit on merit vide judgment and decree dated 29.4.2011, answering six issues against the appellant/plaintiff. 5. The issues were : (i) Whether the plaintiff is the owner of the suit property bearing Khasra Nos. 76, 281, 272, 316, 285 and 303 area 1.420, 0.259, 0.410, 0.090, 4.480 and 2.890 total area 9.290 hectare in village Bodasilli tahsil and District Mandla M.P. (ii) Whether the execution of sale deed by respondents/defendants No.1 and 2 in favour of the respondents/defendants No.3, 4 and 5 is liable to be declared as null and void. 76, 281, 272, 316, 285 and 303 area 1.420, 0.259, 0.410, 0.090, 4.480 and 2.890 total area 9.290 hectare in village Bodasilli tahsil and District Mandla M.P. (ii) Whether the execution of sale deed by respondents/defendants No.1 and 2 in favour of the respondents/defendants No.3, 4 and 5 is liable to be declared as null and void. (iii) Whether respondents/defendants No.1 to 8 are unauthorisedly interfering with the suit land. (iv) Whether respondents/defendants No.3, 4 and 5 are valid holders of suit land transferred in their favour by the respondents/defendants No.1 and 2 and whether respondents/defendants No.1 and 2 are the owners of remaining suit land. (v) Whether respondents/defendants No.1, 3, 4 and 5 are entitled for perpetual injunction against the plaintiff. (vi) Relief and costs. 6. To arrive at a conclusion in respect of the issues No.1, 2 and 3, trial Court found that the appellant/plaintiff has failed to prove the custom of 'Balpos' and has also failed to establish that Samoti Bai daughter of Chamra and Bramha Bai (respondent/defendant No.1) grand daughter had no right to inheritance. The trial Court also returned a finding that even Bakshishnama has not been proved, nor that the plaintiff has been in adverse possession of suit property. That issues No.4 and 5 were not found proved as the respondents/defendants No.1 to 5 remained ex-parte. 7. Being aggrieved the appellant/plaintiff filed appeal after Eleven months. Along with the application under section 5 Limitation Act, 1963. Seeking condonation of delay on the ground that being a rustic villager the appellant was not aware of the judgment dated 29.4.2011 and that it was only on 28.3.2012 when he met his counsel came to know about the dismissal of suit. The application was opposed by the respondent/defendant No.1 stating that the appellant was well aware of the judgment and decree dated 29.4.2011, as he had applied for certified copy on 20.5.2011 and obtained the same on 27.5.2011 yet the appeal was filed on 29.3.2012. 8. The first appellate Court returned a finding that the certified copy of the judgment and decree dated 29.4.2011 having been applied on 20.5.2011 and received on 27.5.2011, there was no cogent explanation for the delay in filing the appeal on 29.3.2012. Accordingly, the application under section 5 of Limitation Act, 1963 was dismissed and the appeal was declined to be entertained. 9. Accordingly, the application under section 5 of Limitation Act, 1963 was dismissed and the appeal was declined to be entertained. 9. The question is whether the appellant/plaintiff discharged the onus of establishing sufficient cause which prevented him to file appeal within the period of limitation and whether in given facts the first appellate Court committed grave error in misconstruing the facts and record as would give rise to a substantial question of law. 10. In Oriental Aroma Chemical Industries Limited v.Gujarat Industrial Development Corporation and another (2010) 5 SCC 459 , it as been observed: 15......... this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate- Collector (L.A.) v. Katiji, N. Balakrishnan v. M. Krishnamurthy and Vedabai v. Shantaram Baburao Patil. (emphasis supplied). In Balwant Singh (dead) v. Jagdish Singh and others (2010) 8 SCC 685 , it has been observed: "25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation. 26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.” 11. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.” 11. In Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai (2012) 5 SCC 157 it has been observed with context of sufficient cause: "24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay." 12. In the case at hand though in an application under section 5 Limitation Act, 1963 it was stated that being a rustic villager the appellant was not aware of the Judgment and Decree. This contention did not weigh much with the first appellate Court who found that the certified copy was applied for on 20.5.2011 and obtained on 27.5.2011, yet the appeal was filed on 29.3.2012. These findings being based on cogent material on record, does not suffer the vice of perversity. 13. In view whereof since no substantial question of law arises, the appeal is dismissed at admission stage. No costs.