1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO. 12180 OF 2009 IN REVIEW APPLICATION (ST.) NO. 511/09 IN SECOND APPEAL NO.483 OF 2004 WITH CIVIL APPLICATION NO. 12181 OF 2009 IN REVIEW APPLICATION (ST.) NO. 511/09 IN SECOND APPEAL NO.483 OF 2004 WITH CIVIL APPLICATION NO. 527 OF 2009 IN REVIEW APPLICATION (ST.) NO.511/09 IN SECOND APPEAL NO.483 of 2004. Nanasaheb s/o Bhausaheb Pande & ors. .. applicants. versus Bhausaheb s/o Vishwanath Somwanshi & ors. respondents. ----- Shri R.L. Kute, Advocate, for the applicants. Shri S.S.Chaudhary, Adv. for the respondents. 2 Coram : P.R.Borkar, J. Date : 01/12/2009. P.C. 01. Civil Application No. 527 of 2009 seeks condonation of delay of 129 days in filing review application as against the order passed by this court in Second Appeal No. 483 of 2004 decided on 1.8.2008. The reasons given for delay are more than one. It is stated that the applicants are financially weak and, therefore, they had to arrange for finance. Secondly, they also had to take opinion whether review should be filed or not and thirdly, there were Diwali vacations during the period 24.10.2008 to 10.11.2008. 02. Civil Application No.12180 of 2009 is for condoning delay of 1836 days in bringing the legal heirs of respondent No2-deceased Bhagwat Somvanshi on record. 03. Civil Application No.12181 of 2009 seeks condonation of delay of 375 days in filing civil application for setting aside the abatement order dated 12.6.2009. In this Civil Application, it is 3 stated that the applicants, who were two in number, were not aware of death of Respondent No. 2 on 9.8.2004. However, as soon as the present applicants came to know about the death of Respondent No.2, they took necessary steps. It is also stated that the applicants received letter by their Advocate by Registered Post A.D. on 15.7.2009 informing them about death of Respondent No.2. Thereafter they made an application for obtaining the death certificate which they received on 3.8.2009 and thus for the first time they learnt about death of Respondent No.2. It is further stated that applicant No.2 Appasaheb suffered head injury due to fall and, therefore, was admitted in S.P. Institute of Neuro-sciences at Solapur from 2.12.2008 to 25.12.2008 and thereafter from 28.1.2009 to 17.2.2009 and has undergone major brain surgery. It is stated that applicant No. 1 was looking-after applicant No.2 during his illness. In paragraph 4 of the application, it is stated that applicant No. 2 was bed ridden and thus was unable to move and carry out his day-today activities. In the circumstances, according to the applicant, there was delay of 375 days, but the office has calculated the same to be of 1836 days i.e. almost of 4-1/2 years. 4 04. Learned Counsel for the Respondents filed counter affidavits in Civil Application No.12181 of 2009 and 527 of 2009 and submitted that the applicants and respondents are the residents of the same village and their houses are about 400 to 500 ft. away from each other. In the reply affidavit filed in Civil Application No.527 of 2009, it also stated that although surnames of the applicants and respondents appear to be different, in fact, they are the members from the same clan. Not only that, the applicants had attended the funeral of Respondent No. 2 and the therefore they had knowledge regarding death of Respondent No. 2 and in spite of that they did not make any application for bringing legal heirs of deceased Respondent No.2 Bhagwat on record. We find averments to that effect in the affidavit in reply dated 25.11.2009 filed in reply to civil application No.12181 of 2009. 05. It is, therefore, submitted by Advocate Shri S.S.Chaudhary for the Respondents that present is a case of sheer negligence on the part of the applicants and not of bonafide inadvertence or want of knowledge. It is stated that there was no discovery of new facts. 5 The applicants were aware of the death of Respondent No. 2 Bhagwat on the same day. Appasaheb was operated in December 2008 and January 20098 and there is no reason why legal heirs of Respondent No. 2 Bhagwat were not brought on record. 06. Learned Advocate Shri S.S.Chaudhary for the Respondents pointed out that original suit was filed in 1985 which is decided on 29th July 1994. The first appeal No.117 of 1994 filed against the said judgment and order was decided on 2.5.2001. Thereafter Second Appeal No. 483 of 2001 filed against dismissal of the First Appeal, was filed along with application seeking condonation of delay and the application was allowed and thereafter Second Appeal was dismissed on merits on 1.8.2008 by this court with observation that there was no substantial question of law involved in the said second appeal. It is after dismissal of said Second appeal, review petition (St.) No. 511 of 2009 was filed which was also delayed by 129 days. In the application seeking condonation of delay, notice to Respondent No. 2 came back with endorsement that he was dead. On receipt of said report, the Court passed conditional order on 12.6.2009 to bring legal heirs of the deceased on record within 12 weeks from that date. 6 In spite of that, application was not filed in time and, therefore, the conditional order became absolute and review petition abated against Respondent No.2. 07. Original dispute between the parties is about right of easement over boundary bund. The trial court and the first appellate court recorded concurrent findings and held that the Respondents- defendants have such right of easement. It may be noted that Respondent No. 2 had died while second appeal No.483 of 2004 was pending. So, the second appeal itself had abated as against Respondent No.2. In the review application, there is no prayer for setting aside abatement as against Respondent No. 2 and to restore the second appeal on record for that purpose. The prayer is for permitting the legal heirs of deceased Respondent No. 2 on record for the first time in the review petition. The said application was filed 1836 days after death of Respondent No.2. 08. Learned Counsel for the applicants cited the judgments in the cases of Urban Improvement Trust, Jodhpur vs. Gokul Narain AIR 1996 SC 1819, State of M.P. vs. S.S.Akolkar AIR 1996 SC 1984 and Ram Nath Sao v. Gobardhan Sao 2002 AIR SCW 978. No doubt, the 7 courts are liberal in condoning delay and permitting legal heirs to be brought on record. However, in the present case it is to be noted that the applicants were fully knowing that the adjoining land owner (Respondent No.2) has died and they had even attended funeral, and yet the applicants did not take any action for 4-1/2 years from the date of knowledge of death of Respondent No.2. Such long delay cannot be condoned, in the absence of any convincing or satisfactory explanation. Moreover, the Second Appeal is also decided on the ground that no substantial question of law was involved in the matter. There are concurrent findings by the trial court and the first appellate court. There is also delay in filing review application stating that there were financial difficulties for the applicants. Ordinarily such difficulties would have been appreciated by this court. But, there is also no prayer for setting aside abatement of appeal as against Respondent No.2. There is no satisfactory or convincing explanation regarding enormous delay of 4-1/2 years in bringing the legal heirs of Respondent No. 2 who died during the pendency of second appeal itself. 8 09. Considering totality of the circumstances as above, in my opinion, these civil applications seeking condonation of delay cannot be entertained. Consequently Review Petition which is on stamp number cannot be registered. 10. Hence, the civil applications are dismissed. pnd/ (P.R.Borkar, J.) ca12181.09