SAMAI LAL Vs. SONAMATI

JUDGEMENT

(1.) The substantial question of law involved, formulated and to be answered in this plaintiff's second appeal is as under: -

(2.) Suit filed by Plaintiff-Sonamati for declaration of title, partition and possession was decreed by the trial Court on 30.8.2002 after hearing the parties, against the said judgment and decree, legal representative/son of defendant No.2 and defendant No.3 preferred first appeal on 21.2.2004 along with an application for condonation of delay as appeal was filed with a delay of 17 months and 21 days, which the first appellate Court did not find favour with and dismissed the application for condonation of delay and consequently, first appeal was also dismissed. Against which, this second appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the appellants/legal representative of defendant No.2 and defendant No.3, in which substantial question of law has been formulated and set-out in the opening paragraph of this judgment.

(3.) Mr.V.K.Pandey, learned counsel for the appellants/legal representative of defendant No.2 and defendant No.3, would submit that the first appellate Court is absolutely unjustified in rejecting the application for condonation of delay and thereby dismissing the appeal as there was no reason not to file the appeal within the time of limitation as the defendants have suffered the decree of declaration of title, partition and possession and when the proceeding for recovery of possession from the defendants was initiated, then they came to know and took steps for filing the appeal and ultimately filed the appeal on 21.2.2004, which has been rejected holding that no sufficient cause has been shown. Therefore, the impugned judgment and decree passed by the first appellate Court deserves to be set aside.