CHUNNILAL Vs. HIRDARAM AND ORS.

JUDGEMENT

(1.) BY this Second Appeal under Section 100 of Civil Procedure Code, appellant Chunnilal has challenged the judgment and decree dated 1/12/2008 passed by the First Additional Judge, Mandleshwar in Civil Regular Appeal No. 59 -A/2006 confirming the decree of the Trial Court.

(2.) BRIEFLY stated the facts of the case are that respondent No. 2/plaintiff Mukesh s/o Shri Hirdaram had filed a suit bearing C.O.S. No. 165 -A/97 regarding the land situated in village Rekhwa, Tehsil Kasrawad, District West Nimar for declaration and injunction. It was resisted by defendant Nos. 2 and 3 by filing separate written statement and by respondent No. 7. The Trial Court after recording the statements passed the decree in favour of the plaintiff and being aggrieved the defendant filed an appeal before the Appellate Court and the Appellate Court had also dismissed the appeal and upheld the decree. And hence, the present appeal.

(3.) COUNSEL for the respondents has vehemently opposed the submissions put forth by the Counsel for the applicants and the applications filed by the applicants. He has submitted that there were two concurrent findings of the Courts below. The death of the appellant Chunnilal had occurred on 29/3/2010 and there is a delay of 1700 days in filing the appeal. Counsel vehemently urged that it is false to say that applicants had no knowledge of this appeal and they came to know about the appeal on 21/11/2014 through the Counsel for the respondents. Counsel has drawn attention to this Court to the execution proceedings that had been started in the Courts below and in the Civil Suit bearing No. 165 -A/1997 the proceeding dated 25/9/2010 clearly indicated that the Counsel for the appellant Pandhari, who appeared in the Court below had stated that the Second Appeal is pending before the High Court and hence the plea taken by the Counsel for the appellant that the legal representatives especially legal representative No. 1 Pandhari s/o Chunnilal being a rustic villager and did not know the proceedings of the Court procedure or that the Second Appeal was pending is incorrect. Besides, the executing Court had directed the legal representatives to produce the copy of the stay order passed by the High Court in the Second Appeal, which was also not done. Thereafter the lower Court proceedings dated 14/10/2010 and 9/11/2010 also indicated that the Counsel for the proposed applicants failed to file copy of the stay order and he prayed for time.