High Court
Case Details
RSA 4/2001 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the defendants is directed against the judgment a nd order dated 6th December, 2000 passed by the learned Civil Judge (Sr. Divisio n), Nagaon in Misc. (J) Case No.6/2000 rejecting the application seeking condona tion of delay of 46(forty-six) days in preferring Title Appeal No.5/2000 and con sequent dismissal of the appeal by refusing to condone the delay in filing the s ame.
Legal Reasoning
[2] The predecessor-in-interest of the present respondent Nos.1(a) t o 1(c); 2(a) to 2(e); 3(a) to 3(c); 4 and 5 alongwith the respondent No.6, whose name was subsequently struck off from the list of respondents vide order dated 15th June, 2007 passed in Misc. Case No.17/2003 on the prayer made by the appell ants, instituted Title Suit No.27/1994, against the present appellants as defend ants, praying for declaration of right, title and interest and also recovery of khas possession by right of purchase contending inter alia that the paternal unc le of the plaintiffs, Moneswar Nath, was the original owner of the land measurin g 4 Bighas 1 Katha 11 Lechas described in Schedule-Ka to the plaint, who sold th e land to Sobhai Nath and who then sold the land to the plaintiffs’ father Modan Nath and plaintiffs’ uncle Moneswar Nath on 21st June, 1956 by a registered dee d of sale and delivered possession. It has further been pleaded that Modan Nath died leaving behind his son Bhebela Nath and the plaintiff Nos.1, 2 and 4. Bhe bela Nath died leaving behind the plaintiff Nos.3(Ka), (Kha) and (Ga). The furt her pleaded case of the plaintiffs is that Late Moneswar Nath was a Sanyasi and died unmarried, who maintained an Ashram and gave shelter to a widow, namely, To peswari Devi, the defendant No.1 in his Ashram, to help him in maintaining the A shram. Moneswar Nath also kept Kartik Nath, as his cultivator. Modan Nath, Pri ya Nath and Moneswar Nath were the 3(three) brothers. Priya Nath stayed at Khung igea village in Morigaon district and waived his claim over the suit land. Priy a Nath died leaving behind the proforma defendant Nos.3 to 6, who also did not c laim over the suit land. According to the plaintiffs, after the death of Mones war Nath, Modan Nath and Bhebela Nath, the suit land devolved on the plaintiffs and they are possessing and enjoying the same. The further pleaded case of the plaintiffs is that the defendant Nos.1 and 2 falsely claiming the suit land as w ife and son of Late Moneswar Nath filed M.R. Case No.243/1988 under Sections 145 /146 Cr. PC and obtained the order of possession and got their names mutated in the suit land by right of inheritance, for which the plaintiffs had to institute the suit. The defendant Nos.1 and 2 on receipt of the summons entered appe [3] arance and contested the suit contending inter alia that the defendant No.1 is t he legally married wife of Late Moneswar Nath and the defendant No.2 is their ad opted son and on the death of Moneswar Nath, the title of the suit land devolved on them as his heirs. [4] amed the following issues for determination:- The trial Court on the basis of the pleadings of the parties, fr (cid:28)1) Is there any cause of action for filing the suit? 2) possession? Whether the suit is barred by limitation and adverse 3) Whether the suit is bad for non-joinder of parties? 4) and acquiescence? Whether the suit is barred by principle of waiver, estopel Whether the defendant No.1 was the legally married wife 5) of Moneswar Nath and Whether Kartik Nath, the defendant No.2 was an adopted son of Moneswar Nath? 6) Whether the plaintiffs have any right, title and interest over the suit land? 7) To what extent the parties are entitled to relief, if any? (cid:29) [5] The plaintiffs and the defendants examined 4(four) witnesses eac h in support of their respective claims and proved a number of documents includi ng the title deed. The suit was, thereafter, decreed by the trial Court by hold ing that the plaintiffs have acquired right, title and interest over the suit la nd. The trial Court upon appreciation of the evidences on record has disbelieve d the story put forwarded by the defendants in the written statement that the de fendant No.1 is the widow of Moneswar Nath and the defendant No.2 is their adopt ed son. [6] Being aggrieved, the plaintiffs instituted the aforesaid appeal, being Title Appeal No.5/2000, together with an application seeking condonation of delay on the ground that as the plaintiff No.1 was suffering from illness fro m 24th December, 1999 to 21st January, 2000, the appeal could not be filed on ti me, i.e. on 8th December, 1999, which was, however, filed on 21st January, 2000. [7] y, 2001 on the following substantial question of law:- The appeal was admitted for hearing vide order dated 7th Februar (cid:28)Whether the learned court below while dealing with the application for condonat ion of delay under Section 5 of the Limitation Act totally ignored the law laid down by the Hon’ble Supreme Court of India in the case of Collector, Land Acquis ition, Anantnag and Anr. Versus Mst. Katiji and Ors. reported in AIR SC 1353 and the subsequent decisions? (cid:29)
Legal Reasoning
[8] I have heard Ms. A. Dey, learned counsel for the plaintiffs/appe llants and Mrs. P. Gogoi, learned counsel appearing for the respondents/defendan ts. [9] It appears from the application filed seeking condonation of del ay that though the appellant/plaintiff No.1 has stated that she was suffering fr om illness, no medical certificate in support of her claim has been filed. Exce pt such self serving statement, no further proof could be adduced by the plainti ffs/appellants in support of the contention that the plaintiff/appellant No.1 wa s ill. That apart, there was another plaintiff/appellant and no reason was cite d as to why he did not take any stapes for filing of the appeal on time. The fi rst appellate Court having regard to the same and also there being no explanatio n for the period from 8th December, 1999 to 24th December, 1999, has dismissed t he application seeking condonation of delay and thereby dismissing the appeal be ing Title Appeal No.5/2000. [10] It has been submitted by the learned counsel for the appellants that since the appellants could demonstrate sufficient cause in not preferring the appeal in time, the first appellate Court ought to have condone the delay in filing the appeal and decide the appeal on merit. [11] Per contra, the learned counsel appearing for the respondents su bmits that it is evident from the order passed by the first appellate Court that the appellants could not demonstrate sufficient cause for not filing the appeal on time. According to the learned counsel, even the certificate in support of the contention that the appellant No.1 was ill has not been produced. It has al so been submitted that there was no explanation why no steps were taken by the a ppellant No.2 to file the appeal. [12] Having regard to the aforesaid position, I am of the view that t here is no illegality in passing the order dated 6th December, 2000, as there wa s no explanation of delay from 8th December, 1999 to 24th December, 1999 and the re was no supporting material relating to the claim of the plaintiff No.1 that s he was suffering from illness from 24th December, 1999 to 21st January, 2000, ap art from the fact that there was no explanation as to why the plaintiff/appellan t No.2 did not take any steps for filing the appeal in time. [13]
Decision
In view of the above, there is no merit in the appeal and hence, the same is dismissed. [14] No costs.