BUDH SINGH Vs. RAGHUBIR SINGH AND ORS.

JUDGEMENT

(1.) THIS appeal, under Section 96 of the Code of Civil Procedure (CPC), 1908 impugns the judgment and decree dated 15th December, 1979 of the Court of Shri R. Dayal, Additional District Judge, Delhi of dismissal of civil suit No. 47/1979 (Old No. 297/1973) filed by the deceased appellant Shri Budh Singh against his deceased brothers Shri Raghubir Singh (Respondent No. 1), Shri Balbir Singh (Respondent No. 2), Shri Kishan Singh (Respondent No. 3) and his sisters namely Smt. Shanti (Respondent No. 4) and Smt. Manti (Respondent No. 5) for partition of immovable properties.

(2.) THE appeal came up first before this Court on 5th March, 1980 when while admitting the same, ex parte ad interim order of stay of dispossession was passed and which was on 10th July, 1980 made absolute till the decision of the appeal. The appeal has remained pending in this Court for the last 36 years owing to the time taken in service of the respondents and thereafter in substitution of the legal heirs of the appellant and the respondents No. 1, 2 & 3, all of whom died in the interregnum and in service of notice of the appeal on them vide another interim order dated 9th September, 1987, the respondents were restrained from transferring, leasing or otherwise parting with possession of the suit properties or any part thereof and which order also has continued in force till now. In this long span of time, some of the legal heirs substituted of the original parties also started dying and steps for substitution of their legal heirs also took time. On 10th September, 2015, applications for substitution of the legal heirs of one of the legal heirs of the deceased respondent No. 1 and for condonation of 1248 days delay in applying therefor and 140 days delay in re -filing of the application had come up before this Court. It appears that over a period of time, though service of all the respondents and of all the legal heirs of the deceased respondents No. 1, 2 & 3 was completed, they/their Advocates also lost interest in the matter. On 10th September, 2015, only the counsel for the legal heirs of the appellant and the counsel for one of the legal heirs namely Shri Mahavir Singh (who also has died and whose legal heirs were for substitution on 10th September, 2015) of the deceased respondent No. 1, appeared. Though the counsel for the legal heirs of the said Shri Mahavir objected to the substitution on the ground of long delay on the part of the legal heirs of the appellant in applying therefor, but the delay was condoned and the substitution permitted on the condition of the counsels arguing the appeal on that date itself. On request of the counsels, the matter was posted to today. The counsel for the legal heirs of the appellant and the counsel for the legal heirs of Shri Mahavir Singh, being one of the legal heirs of the deceased respondent No. 1 Shri Raghubir Singh, have been heard. None appears for the other respondents/their legal heirs who are proceeded against ex parte.

(3.) THE respondents/defendants No. 1, 2 & 3 being the brothers of the appellant/plaintiff filed a joint written statement: