Hari Kishan vs Rati Ram

Paramjeet Singh, J.—Instant regular second appeal has been preferred by the appellants-defendants against the judgment and decree dated 21.08.2010 passed by learned Civil Judge (Junior Division) Charkhi Dadri whereby suit filed by the respondents/plaintiffs for declaration has been partly decreed, as well as, against the judgment and decree dated 12.09.2012 passed by learned Additional District Judge, Bhiwani whereby two appeals, one preferred by the appellants/defendants and another by respondents/plaintiffs, have been dismissed. Along with this second appeal, a Civil Misc. Application viz. CM No. 6872-C of 2014 for condonation of 531 days'' delay in filing the appeal has also been filed.

For convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of first instance.

The detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, brief facts relevant for disposal of this second appeal are that plaintiffs filed a suit for declaration challenging thereby judgment and decree dated 08.01.1991 passed in Civil Suit No. 918 of 1991 titled as "Hari Kishan and others versus Bharat Singh and others" on the ground of fraud, whereby coparcenary right regarding suit property, detailed in the headnote of the plaint, which had allegedly been transferred by aforesaid civil court decree by predecessor-in-interest of the plaintiffs, namely, Bharat Singh in favour of the defendants without any competency because he owned and possessed the suit land as manager of the undivided family which he inherited from his father and reasons being so, it was the ancestral property in which all plaintiffs were coparceners.

Upon notice, defendants appeared and filed joint written statement. It has been alleged that the judgment and decree challenged in this suit merely gave effect to a family settlement arrived at between the predecessor-in-interest of the plaintiffs, on one hand, and the defendants, on the other hand. It has been further alleged that no fraud was ever practiced on Bharat Singh for getting the challenged judgment passed.

On the basis of the pleadings of the parties, the Court of first instance framed the following issues:-

1) Whether impugned judgment/decree dated 08.01.1991 and consequent impugned mutation No. 803 dated 15.07.1998 are illegal on the grounds taken in the plaint? OPP

2) If issue No. 1 is proved, whether plaintiffs are owners in possession of suit land? OPP

3) If above issues are proved, whether plaintiffs are entitled for injunction on the grounds taken in the plaint? OPP

4) Whether the suit is not maintainable in the present form? OPD

5) Whether plaintiffs have no locus standi to file the present suit? OPD

6) Whether plaintiffs have not come to the Court with clean hands? OPD

7) Whether plaintiffs are stopped to file the present suit by his own act and conduct? OPD

8) Relief.

The Court of first instance after perusal of the evidence led by the parties, partly decreed the suit in favour of plaintiff nos. 1 to 3 vide judgment and decree dated 21.08.2010. Against that, plaintiffs and defendants preferred two separate appeals, which have been dismissed by the lower appellate Court vide common judgment and decree dated 12.09.2012. Hence, this second appeal preferred by the appellants/defendants.

I have heard learned counsel for the appellant and perused the record.

At this stage, since there is inordinate delay in filing the appeal, therefore, before hearing the matter on merit, application for condonation of delay be heard and decided.

Application for condonation of delay bas been filed on the ground that there is no intimation/knowledge to the applicants-appellants with regard to decision of the appeal before the lower appellate Court. The applicants-appellants came to know about the decision of the appeal only when they contacted their counsel at District Court, Bhiwani in the month of July, 2013. On contacting the counsel, he was intimated that their appeal has been dismissed by the lower appellate Court on 12.09.2012 and certified copy of the same was applied and obtained. However, on demand of certified copy of the judgment, it was informed that the same has been misplaced and the same would be dispatched to the applicants in a short span of time. Thereafter, on the asking of the applicants for certified copy of the judgment, it was informed that the same had been sent by post. However, the same was not received. Thereafter, the applicants again applied for certified copy of the judgment and the same was received on 20.05.2014. For these reasons, 531 days'' delay in filing the instant second appeal has been occurred.

I have considered the contentions of learned counsel for the appellant on the application for condonation of delay.

The issue of unreasonable or inordinate delay has received attention in several cases in courts of law. There are no hard and fast rules as to the manner in which the discretion to condone delay in filing an appeal is to be exercised. Often, period of delay and reason thereof, the prejudice, if any, caused to the respondent and merit of the case are taken into account. A close and careful examination of all these circumstances will determine whether delay should be condoned or not. There may be instances in which delay is relatively slight but serious prejudice is caused to the respondent and in other cases delay may be inordinate but prejudice is slight. Basically, the Court while condoning delay takes into account sufficient cause and reasons for delay. In view of this, it would be highly undesirable and indeed impossible to attempt to lay down a specific period i.e. so many years, more on the one side, lessor period on the other side. What is or is not inordinate or unreasonable delay depends upon the facts of each particular case. These vary from case to case, if delay is inordinate credible excuse is necessary to explain it otherwise natural inference would be that it is an inexcusable. These factors have been considered in numerous cases by various Courts of law. In terms of above, if a party which institutes a suit and then fails to avail all the remedies of appeal diligently may lose the right to appeal and being heard on merit unless sufficient grounds for condoning the delay are furnished. While assessing the delay objectively, it is to be seen from the point of view that due to delay the party has lost interest in pursuing the matter.

In the present case, following factors are required to be considered for condonation of delay:-

a) Is the delay in filing of the appeal is highly excessive and is there any reasonable explanation for the delay?

b) Are there prospects of success in the main appeal?

c) Will the respondents suffer, if delay is condoned?

So far as factor (a) in the present case is concerned, the delay of 531 days is apparently excessive. The affidavit of the applicants-appellants in the present appeal along with application for condonation of delay that there is no intimation/knowledge of the appeal is incorrect. In my view, the explanation furnished for condonation of excessive delay is not believable and no cogent reasons and sufficient grounds have been given for condoning excessive delay of 531 days. The inference is irresistible that the applicant-appellant had decided for unexplained reasons not to file appeal within limitation.

So far as factor (b) with regard to the success of the main appeal is concerned, the lower appellate Court, after appreciating the evidence on record, recording following findings:-

(a) In consent suit Ex. PW-1/A, suit property had been pleaded by the defendants in the present suit though plaintiffs in aforesaid suit to be the ancestral property in the hands of Bharat Singh vide para no. 2 of the plaint. Bharat Singh appeared and filed the admitted written statement Ex. PW-2/A and vide corresponding para no. 2 thereof he admitted para no. 2 of the plaint in toto. It means, Bharat Singh himself admitted the facts that suit property in his hands was ancestral property and not his self-acquired property. Even in the instant case, plaintiff vide para no. 3 of the plaint, pleaded themselves to be coparceners in the suit property being ancestral one in the hands of Bharat Singh and no specific denial to this averment had been given by the defendants through corresponding para no. 3 of their written statement. So, where pleadings are not specifically denied in details, it is deemed to have been accepted by the opposite party as correct. Therefore, the version of the plaintiffs that suit property was ancestral property in the hands of Bharat Singh in which they being the legal representatives of Bharat Singh were coparceners has been well established on record on the basis of implied admissions of the defendants and that being the reason which makes the plaintiffs entitled to get their shares therein.

b) Section 10 of Hindu Succession Act, 1956 deals with distribution of property among heirs in Class I of the Schedule. Plaintiffs Rati Ram, Suresh, Balwan (sons), Smt. Ram Kaur, Chanderpati, Murti Devi (daughters) and Smt. Bhateri Devi widow of Bharat Singh fall in Class I legal heirs. Therefore, as per Section 10 of the aforesaid Act, all of them are entitled to take one share each. Hence, in the opinion of this Court, Bharat Singh being head of his Hindu Undivided Family was looking after the family as ''Karta'' thereof and he was not absolute owner of the same rather, he was entitled to get 1/8th share therein being coparcener with plaintiffs who are seven in number and to the extent of his 1/8th share, he was competent to transfer the property in question in the manner he liked much less through civil court decree or any other document because to the extent of his 1/8th share he had become absolute owner thereof. Therefore, appellants in the connected appeal cannot claim the entire property because they are bound to leave this 1/8th share of deceased Bharat Singh. Accordingly, judgment and decree Ex. P1 and Ex. P2 under challenge in the instant case are liable to be set aside beyond 1/8th share of Bharat Singh being illegal but upto his 1/8th share the same are declared to be legal and valid documents. Any consequent transaction took place during pendency of the suit land appeal shall be deemed to be void transaction regarding suit property being his by doctrine of ''lis pendens'' embodied in Section 52 of the Transfer of Property Act.

In view of my aforesaid discussion and observations, all plaintiffs mentioned in the title of the original plaint will get 1/8th share each in the suit property leaving therein 1/8th share of deceased Bharat Singh who is deemed to have already transferred his share in favour of the defendants vide judgment and decree Ex. P1 and Ex. P2 under challenge in the original suit. It is pertinent to mention here that the legal heirs of any deceased plaintiff(s) will get equal shares in 1/8th share of deceased member in the suit property. Accordingly, to the extent of aforesaid modification, the revenue record is liable to be correct.

The pure findings of fact have been recorded by the Courts below. As such, there is no merit even in the main appeal.

So far as factor (c) is concerned, the opposite party will suffer, if inordinate delay is condoned. The opposite party always expects that matter is brought to finality and it cannot be kept waiting for indefinite time to see that appeal can be filed at any time. Once statutory period of limitation expires, delay becomes sufficiently protracted, it becomes a sufficient and just ground to dismiss application for condonation of delay. Inordinate and unreasonable delay in filing the appeal constitutes an abuse of process of Court and warrants dismissal of the application. It is also the duty of the applicant-appellant to ensure that appeal should be filed within time frame in accordance with the provisions of law so that the matter may attain finality.

In view of the facts and circumstances narrated above, I am of the considered opinion that applicant-appellant has failed to make out a case justifying condonation of inordinate delay of 531 days in filing second appeal.

No other point has been argued.

In the premises the applicants-appellants'' application for condonation of delay fails and is hereby dismissed. Resultantly, instant second appeal is also dismissed as barred by limitation as well as being devoid of merit.