LAXMAN AND DHARMANNA Vs. YELLAPPA AND ORS.

JUDGEMENT

(1.) THIS second appeal is by the defendants 7 and 9 in the suit challenging the concurrent findings of the Courts below, whereby the trial Court decreed the suit of the plaintiff holding plaintiff has got 1/5th share and defendants 1 and 2 together have got 1/5th share, defendants 3 to 6 together have got 1/5th share and defendant No. 7 and L.Rs. of defendant No. 8 and 9 have got 1/5th share and the same was confirmed by the lower appellate Court. Along with the appeal, an application under Sec. 5 of the Limitation Act was filed praying to condone the delay of 237 days in filing the appeal. It is opposed by the respondents by filing statement of objections.

(2.) APPELLANTS 1 and 2 are defendants 7 and 9 respectively in the suit. During the pendency of this appeal, first appellant died and second appellant was permitted to be treated as the L.R. of first appellant and the cause title of the appeal memo was amended accordingly.

(3.) DECEASED first appellant who has sworn to the affidavit filed in support of the delay application, in para 2 of his affidavit has stated that this second appeal is preferred challenging the concurrent judgments and decrees of the Courts below and averments made in the main appeal may be read as part and parcel of this affidavit. In para 3 of his affidavit, he has stated that plaintiff has miserably failed to prove that the suit properties are joint family properties and evidence on record shows there was partition in the joint family by metes and bounds in the year 1956 and parties are enjoying their respective shares, evidence also shows properties in para 1(c) and (e) are self acquired properties of defendant No. 7 and Courts below are not justified in decreeing the suit. In para 4 it is stated, if delay is not condoned appellants will be put to great hardship.