SHANKAR Vs. SHEKU

JUDGEMENT

(1.) The Second Appeal No. 144/1994 filed on 28.11.1994 was disposed of as abated by order dated 20.07.2012 on account of death of sole appellant on 24.11.2007. The present applicants, the legal heirs of Shankar have filed this application for condonation of delay setting aside abatement bringing themselves on record and restoration of the appeal. Meanwhile, the respondent had also died. By order dated 28.02.2014 in Civil Application No. 1814/2014, his heirs are brought on record. The said order is also under challenge. If these complications were not enough, there is one more complication that similar application for similar reliefs. Civil Application No. 6388/2013 has been disposed of. This application was earlier allowed due to misunderstanding, and Civil Application No. 6388/2013 was restored, but when it was found that this Application is filed for restoration of Second Appeal and not Civil Application No. 6388/2013, the said order has been recalled. Thus, this litigation has a checkered history.

(2.) The lis began by Regular Civil Suit No. 192/1980 filed in the Court of Civil Judge, Junior Division, Kannad by the respondent herein Sheku Kalu (hereinafter Sheku (R) ) against the original appellant herein (hereinafter Shankar (D). The suit was for specific performance of contract and possession of agricultural land. Sheku (R) claimed that Shankar (D) by agreement dated 02.07.1976 agreed to sell to him 3 acres of land for Rs. 9,000/- and he has paid earnest of Rs.5,000/-. Permission from Deputy Collector, Vaijapur was accorded on 06.10.1976. Sheku (R), who was ready and willing to perform his part of his contract by paying the balance amount for obtaining execution of sale deed. Sheku (R) issued notice dated 12.07.1980, which was not complied. Hence, the suit. Shankar (D) denied the execution of agreement. It is his case that it was mortgage transaction for Rs.5,000/-. He had filed affidavit in Kannad Court and the plaintiff was taking advantage. He claimed that mortgage money was satisfied by enjoyment of land by the plaintiff, who was put in possession for 4 years. Alternatively, he showed willingness to pay Rs.5,000/-. The learned trial Judge held that the agreement to sell was proved, but the suit was barred by limitation. The Judgment of trial court dated 24.01.1989 was assailed by Regular Civil Appeal No. 60/1989 before District Judge, Aurangabad. The District Judge, Aurangabad allowed the appeal and granted decree of specific performance. Hence, the original plaintiff preferred Second Appeal No. 144/1994. The appeal was admitted on 28.11.1994 on substantial question of law regarding the limitation. Thereafter, the appeal went in suspended animation.

(3.) The sole appellant Shankar died on 24.11.2007. The LRs. claimed that deceased Shankar (D) was solely looking after the proceedings. His wife was illiterate and sons were minor. They were not aware about the pendency of the said proceedings.