(1.) THIS is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the concurrent findings of fact recorded by both the Courts below holding that Goman Wanti (now deceased) was not owner of the house in dispute as her vendor Amar Nath was not entitled to pass any valid title to her by way of sale deed dated 4.12.1972 (Ex. PW-1/3) because the Power of Attorney in favour of her vendor Amar Nath was cancelled by way of cancellation deed dated 30.5.1962. After the aforementioned cancellation, the vendor of the plaintiff-appellant did not have any power to execute the sale deed in favour of Goman Wanti (now deceased). The findings of the learned lower Appellate Court in that regard are discernible from para Nos. 10 and 11 and the same read as under :-
(2.) DURING the pendency of the appeal filed in 1983, Goman Wanti died on 9.10.1991 at Amritsar. No attempt was made to bring on record her representatives within the stipulated period of 90 days. However, Civil Misc. No 2597-C of 2004, dated 11.3.2004 was filed under Order XXII Rule 3 of the Code for bringing on record the legal representatives of the plaintiff- appellant asserting that the plaintiff-appellant has died on 9.10.1991 at Meharpura, District Amritsar and is survived by her three sons and a daughter, namely, Mangal Dass, Amar Nath, Bishamber Singh and Raj Rani. In support of the assertion a document with endorsement by Shri Vijay Kumar, Councillor, Municipal Corporation, Amritsar, certifying that the plaintiff-appellant was cremated at Cremation Ground, Amritsar, has been attached as Annexure A-1. In paragraph 4 of the said application the assertion made is that only one legal representative Mangal Dass has come forward to get himself impleaded as appellant despite the knowledge of the pendency of the instant appeal and request was made that other LRs be brought on record as respondents. The averment made in paragraph 4 of the application along with the prayer is reproduced below :-
(3.) IN pursuance to the aforementioned observation made by this Court, learned counsel for the applicant Mangal Dass filed an application dated 23.8.2004, under Section 5 of the Limitation Act, 1963 read with Order XXII Rule 1 of the Code being Civil Misc. No 8232-C of 2004 along with an affidavit of Mangal Dass. It has been asserted that the legal representatives of the plaintiff- appellant are illiterate persons and did not have any knowledge that they were required to be brought on record within a period of 90 days from the date of death failing which appeal was to abate. It was further asserted that the legal representatives of the deceased plaintiff-appellant came to know about the pendency of the appeal when her counsel wrote a letter to her in the month of September, 2003 and one of the sons of Goman Wanti contacted the counsel disclosing the information that the plaintiff-appellant had expired on 9.10.1991. It is appropriate to mention that this Court has amended the Rules which came in operation with effect from 4.12.1992 and, therefore, the aforementioned amendment is not applicable to the present case as is admitted by the learned counsel for both the parties. Further averment has been made on the basis of provisions of order XXII Rule 1 that the right to sue survives and the appeal cannot be deemed to be abated on the expiry of 90 days from the date of the plaintiff-appellant. Accordingly condonation of delay of 12 years and 5 months in bringing on record the legal representatives of the deceased plaintiff-appellant has been sought.