1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No. 754 OF 2009. IN Civil Application No. 4794 OF 2009 Sau. Alka Kantilal Munot ... Appellant. Versus Kisan Bhagwan Gavare & Others. ... Respondents. -------- Shri. Satyajit Bora, Advocate for the appellant. Shri. S.Y. Mahajan, Advocate for the Respondent No. 1. -------- CORAM: V.R.KINGAONKAR, J. DATE: 12th NOVEMBER 2009 PER COURT : 1) Heard learned counsel. 2) This Second appeal is preferred by original defendant No. 7, the respondent Nos. 1 & 2 had filed suit (RCS No. 86 of 1991) for declaration of ownership in respect of suit property including a house and two agricultural 2 lands. Their case before the Trial Court was that originaly one Dashrath Manu Gavare was holder of six agricultural lands and the house property. He had four sons by name Janardhan, Namdev, Bhagwan and Ambrushi in his life time Janardhan and Bhagwan died. After his death the entire joint Hindu Family property was held by his surviving son by name Namdev, in his life time Dashrath had divided the estate amongst the four sons and therefore, the plaintiffs i.e. Respondent No. 1 & 2 became onwers and possessors of the suit properties which are described in Schedule A. They were cultivating the suit lands since 35 years. It was alleged that, after the death of Namdev his son Bhagwat was alienated the 5 acres of land in favour of defendant No. 7 Sow. Alka. She was added as a formal party. 3) It is pertinent to notice that defendant No. 7 (Appellant herein) did not file written statement. It is also pertinent to notice that the plaintiffs claimed their rights on the basis of parties whcih was effected in the life time of 3 Dashrath wherein their predecessor i.e. Bhagwan, who was the third son of Dashrath, was allegedly allotted the suit lands and the house as shown in Schedule A. Their predecessor Bhagwan was not vendor to Smt. Alka (Appellant) thus, explicit they did not challenge the sale-deed executed by Bhagwat, who was the cousin of plaintiff No. 1, because it was not their case that the said land is part of joint Hindu family property and said Bhagwat is any concerned with the same. The suit came to be decreed. Since defendant No. 7 Smt. Alka (Appellant) had not file any written statement there was no issue raised regarding her transacation with said Bhagwat. The appellant did not challenge the decree for about eight and half years the appellant however, preferred appeal after eight and half years along with an application for condonation of delay. The delay condonation application (MA No. 178 of 2001) came to be rejected by this First Appellate Court. 4) It is pertinent to notice that the delay condonatin application (Exh.B) wouold show that 4 the appellant has not filed written statement because no relief was calimed against her. It was alleged that the plaintiffs had played fraud on the Court and the appellant. It was further contended that the appellant was made to belief that she was made formal party and therefore, she could not file pleading. It was also contended that after the decree, the plaintiffs were to give undue advantage and were tried to obstruct her possession. Hence, the appellant had sought condonation of delay cause in filing before the First Appellate Court. 5) The learned District Judge rejected application on the ground that the appellant failed to show sufficient cause for the delay. 6) Mr. Bora, learned Advocate would submit that the delay was liable to be condoned because the appellant was under bonafide impression that the execution of sale-deed was admited by the plaintiffs and therefore no executable decreee was sought against her. He would submit that ordinarily no delay would be committed by party 5 which is likely to be deterimental to his cause. He urged sympathatically considered the reasons and condone the delay. 7) The conduct of the appellant does not appars to be that of a vigilent litigant. NO written statement was filed in spite of sufficient opportunity to availed by the Trial Court. The Original Defendant Nos. 1 to 4 was also did not file any written statement. The avement in the pleadings of the plaintiffs did not show that no relief was claimed against the appellant. There was no basis for the appellant to assume that no relief sought against her and therfore, she was not claimed to file written statement. In fact, perual of her application for condonatin of delay would show that there is hardly any explanation for the delay except her contention that she was under the impression that she was not required to file written statement due to her being a formal party. The appellant could not have determined herself that she was a formal party and was not liekly to be affected 6 which have been rendered by the Trial Court. The first Appeallate Couret also noticed that the advocate for the appellant had cross-examination the plaintiffs witnesses and the plaintiff and therefore, the decree could not be recorded as exparty. The delay cannot be condone because the appellant was likely to suffer the decree. 8) It is well settled that law will not help the litigant who does not care for his rights. The principle “ vigilant ibus, et non dormentibus, jura sub veniunt” is directed in the present circumstance. There is absolutely no sufficient reason stated by the appellant in support of her delay condonation application. Consequently no substantial question of law is involved in the Second Appeal. Hence the appeal is dismissed and also Civil Application No. 4794/2009 is also disposed of. (V.R. KINGAONKAR, J.) 7 SDM/754.09 8