Amol Vishwanath Ankute v. Anandibai Chainsukhlal Nahar And Others

1 S.A. 568.2014.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD SECOND APPEAL NO. 568 OF 2014 Amol s/o Vishwanath Ankute ..... APPELLANT V E R S U S Anandibai w/o Chainsukhlal Nahar & Ors. ..... RESPONDENTS .....

Mr. S.J.Salunke, Advocate for Appellant.

Mr. S.G.Chapalgaonkar, Advocate for R.No. 1.

.....

CORAM : T.V.NALAWADE, J.

DATE : 15th APRIL, 2016 ORAL ORDER :- .

The Appeal is filed against the Order made by the learned Ad-hoc District Judge - 1, Beed in Misc. Civil Application No. 46/2014. The Application filed for condonation of delay of more than 11 years caused in filing Regular Civil Appeal, the first Appeal, is rejected by the District Court. Heard both sides.

2.

The Suit was filed by present respondent No.

1 Anandibai for relief of declaration of ownership and relief of perpetual injunction in respect of agricultural land. The Suit was contested by present appellant and on

2 S.A. 568.2014.odt merits the trial Court gave the decree in favour of the present respondent. The matter was decided on 08/12/2003. The delay condonation application was filed in the District Court in the year 2014, after about 11 years of the aforesaid decision given by the trial Court. The present appellant contended in the said proceeding that due to poverty, he could not approach the District Court and as there was some development like compromise after the date of the decree given by the trial Court, steps were not taken by the appellant to file Appeal. No evidence at all was given by the applicant before the learned Ad-hoc District Judge to show that there was any kind of settlement between the parties. No evidence was given that he was not in a position to collect resource for about 11 years for any reason. 3.

Condonation of delay is a discretionary matter. As there was nothing on record to substantiate the contentions, the District Court has held that no sufficient cause is shown for condonation of delay. As the order made involves use of discretion, this Court is not expected to lightly interfere in the order made by the District Court. Further, the submissions made show that after getting the decree, proceeding was started by the respondent Anandibai to enter her name in the record of rights as owner in the year 2008. In view of this circumstance, it can not be said that there was settlement between the parties and due to that the present appellant did not take steps to file the Appeal.

3 S.A. 568.2014.odt 4.

Learned counsel for the appellant submitted that the appellant got connection of electricity in the suit property and he also obtained non agricultural permission after the decision of the Suit and due to these circumstances, inference can be drawn that there was settlement. This submission is not at all acceptable. When on the revenue record there was name of the present appellant as owner, the concerned authority must have made said order in favour of the appellant. That does not mean that any right was conferred on the appellant. The submissions made show that R.T.S. proceeding was started and so Appeal was required to be filed.

5.

The facts and circumstances of the present matter show that there is clear possibility that only to protract the things, Appeal was not filed in time. Only when the appellant realized that some steps need to be taken in view of the subsequent developments, he approached District Court. The submissions made show that more Suits were required to be filed in respect of the same suit property and the Suits are filed for relief of possession, etc. by respondent. In view of these circumstances, this Court holds that there was no sufficient cause. Further, there is nothing on record to show that there was some arguable case in the First Appeal.

6.

Learned counsel for the appellant placed reliance on the case reported in AIR 1998 Supreme

4 S.A. 568.2014.odt Court - 3222 [N. Balakrishnan Vs.

M.Krishnamurthy]. There can not be any dispute over the proposition. The facts of the said case were totally different from the facts of the present case. 7.

In the result, Second Appeal stands dismissed. In view of dismissal of Second Appeal, C.A. No. 409 of 2015 does not survives and stands disposed of [T.V.NALAWADE, J.] KNP/S.A. 568.2014.odt