1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH SECOND APPEAL ST. NO. 6755 OF 2001 WITH CIVIL APPLICATION NO. 5103 OF 2001 Subhash s/o. Baburao Patil, age 24 years, occ. agriculture, R/o. Sangam (Borol), taluka Udgir, dist. Latur. - - - Appellant [ Orig. plaintiff ] versus 1] Shivaji s/o. Balwantrao Patil, age 35 years, r/o. Sangam [Borol], taluka Udgir, district Latur. 2] Somnath s/o. Baswantrao Dhage, age 24 years, occ. agriculture, R/o. Sangam (Borol), tq. Udgir, district Latur. - - - - Respondents [ Orig. defendants ] Shri C. R. Deshpande, Advocate for appellant. Shri A. N. Gaddime, Advocate holding for Shri V. D. Gunale, Advocate for respondent no.1. Respondent No.2 absent though served. CORAM: N. D. DESHPANDE, J. Dated : 14th December 2009 ORAL JUDGMENT : 1. Heard Shri C. R. Deshpande for the appellant and Shri 2 Gaddime for respondent no.1. 2. This second appeal is arising out of a suit filed by the appellant Subhash Baburao Patil, for declaration and injunction in respect of 7 acres and 5 gunthas of land of survey no. 61 situated at village Sangam, taluka Udgir against respondents Nos.1 and 2 who are the original defendants. Appellant/ plaintiff's suit was decreed partly to the extent of declaration that he is owner only to the extent of 4 acres and 4 gunthas which was shown in red color in the map given by plaintiff [ plaint exhibit 88/3 ] and therefore, defendants/ respondents were injuncted not to interfere in possession over the said 4 acres and 4 gunthas. Needless to state that plaintiff's suit for the remaining 3 acres 1 guntha land in western side corner of survey No. 56 came to be dismissed for declaration and injunction. This is the disputed land which is held by the respondents. There is no cross appeal or separate appeal against the said judgment and decree dated 21-12-1984 passed by Civil Judge, Junior Division, Udgir in favour of plaintiff / appellant. Still he felt aggrieved for his entire claim was not decreed for total 7 acres and 5 gunthas. So he preferred first appeal but failed and the 1st appellate Court maintained the decree passed by the trial Court dated 21-12-1984 and appeal came to be dismissed. These 3 are impugned judgments and orders in second appeal by the same plaintiff whose claim was partly decreed as above. However, in bringing action by way of second appeal, the appellant was late. So, the appeal is accompanied by a separate application numbered as Civil Application No. 5103 of 2001 purported to be under Section 5 of the Limitation Act, 1963 praying condonation of alleged delay of 428 days giving reasons. 3. Heard Shri Gaddime for respondent No.1 who opposed admission of second appeal on merits so also on the point of limitation as barred. 4. Section 5 of the Limitation Act provides for extension of period of limitation beyond the period of limitation prescribed for filing appeal or application and in the present case it is 90 days. Figure of delay shown is 428 days. 5. I have gone through the contents of the application and the reasons given in the application. The applicant came to know about the dismissal of the appeal very late. He did not receive the letter from his Advocate about the dismissal of his first appeal which he knew only when he met him personally. So, he immediately applied for certified copy on 6-2-2001 and got certified copy on 4 26-2-2001 and filed an appeal on 27-3-2001 within one month. So, delay comprises the period of passing of the impugned judgment of the 1st appellate Court till he got knowledge about the decision. What is to be seen is that delay needs to be explained as sufficient cause for preventing party from filing appeal in time (90 days). Normally no proof is called once delay is admitted by a party from his own side and it is explained. What is required is satisfactory explanation. Its veracity and credibility is not to be doubted unless it is patently false and the delay is deliberate. 6. Learned Counsel for the applicant Shri Deshpande explained the delay and the said explanation is accepted. The delay is condoned. The said period is given as "extension" under section 5 of the Limitation Act. Application is allowed to enable the applicant to get his second appeal registered and numbered. Since the matter is very old of the year 2001 and could not be heard earlier for admission for the alleged delay. 7. For the above reasons application for condonation of delay is allowed and disposed of. Appeal be registered and numbered since the matter was already delayed, second appeal is taken up for hearing at the stage of admission. 5 8. Heard Shri Deshpande for the appellant and Shri Gaddime for the respondent at length. 9. Firstly, there was difficulty to understand the real controversy between the parties and the facts of the case because it has a chequered history in the backdrop of earlier suit filed by the same plaintiff against his vendor one Manohar, real brother of present defendant No.2 Somnath Dhage. R. C. S. No. 42 of 1979 once filed by the appellant/ plaintiff against Manohar brother of defendant no.2 for specific performance of agreement of the year 1976. On 15-6-1976 when he entered into agreement as part performance, he paid Rs.6000/- and received possession of the entire property i. e. 7 acres and 5 gunthas. Then he filed a suit for specific performance against Manohar in the Court for getting a regular registered sale deed which he did not execute and it so appeared from the plaint averments. Ultimately, he succeeded in getting a registered sale deed of a decree passed in R.C.S. No. 42 of 1979. Thereafter, he chose to file present suit bearing R.C.S. No. 54 of 1980 for declaration and injunction to protect his alleged possession over the land purchased by him by a sale deed through Court admeasuring 7 acres 5 gunthas of gat No.61. It seems from the record that the dispute was not for the entire 7 acres 5 gunthas 6 because plaint map is also shown in red colour. It is only to the extent of 3 acres and 1 guntha of northern side corner which is admittedly held by defendant no.1 who is purchaser from defendant no.2 Somnath and it is admitted position. This was purchased by him on 11-4-1977. It is also a registered sale deed and both the defendants/ respondents herein are relying on the impugned decision for title of defendant no.1 on the same sale deed. They are claiming possession. This story of defendant no.1 that he purchased 3 acres 1 guntha of land from defendant no.2 Somnath is accepted and held to be proved and therefore, plaintiff's/ appellant/s suit was dismissed to that extent. Thus, present suit is between plaintiff Subhash who is a purchaser from brother Manohar as per compromise decree on one side versus defendant no.1 Shivaji who is purchaser from his brother Somanth (defendant No.2) in respect of for 3 acres and 1 guntha out of 7 acres 5 gunthas of northern side corner portion which he purchased in the year 1977 prior to plaintiff's sale deed. 10. The compromise decree came to be drawn on 17-2-1979. However, the said dispute of 1979 did not refer to the sale deed of defendant no.1 which he got from Somnath defendant no.2. The plaintiff also referred the date of sale deed of defendant no.1 as 7 cause of action for him to file the suit for claiming declaration and injunction against him but the same was not challenged by him when he filed the said suit against his vendor Manohar for specific performance of the contract or agreement of 1976 and the said suit was filed in the year 1979. It is also seen that vendor Manohar is also not made party in the suit when the plaintiff derived his title on the basis of sale deed which he received from Manohar in order to claim a decree for total 7 acres 5 gunthas, but he chose to file suit only against his brother Somnath (defendant no.2) who executed sale deed in favour of Shivaji defendant no.1. Both the Courts have given their anxious consideration to the family dispute between Somnath and Manohar and recorded their findings to the relevant issues and rightly appreciated it to the extent of decreeing plaintiff's suit partly excluding the portion which was already sold to defendant no.1 by defendant no.2 Somnath. Admittedly, Gat No. 61 was joint family property and was for some time held by Vishwanath Kante as sold or as a security for loan given to the joint family. Then it came back to the family. According to the plaintiff, it was Manohar who got it back on repurchase for himself and therefore, plaintiff derived title from Manohar. But this is neither substantiated nor deposed to by Manohar that he repurchased 7 acres 5 gunthas of land back in his name from Vishwanath Kante to the exclusion of 8 other family members. So, plaintiff/ appellant had failed in both the Courts to establish his title, so also its possession of the northern corner land 3 acres 1 guntha which was already sold to defendant no.1 by Somnath. There is no substantial question of law and no re-appreciation of evidence required since it is not permitted in second appeal. Appeal is devoid of substance. Hence summarily dismissed at the stage of admission and finally disposed of. ( N. D. DESHPANDE, J. ) pnk/sast675501