RANBIR SINGH Vs. PARDUMAN SINGH

JUDGEMENT

(1.) THE appellants were defendants and have filed this appeal against judgment, decree dated 30.9.1999 passed by learned District Judge, Mandi in Civil Appeal No. 10 of 1995 affirming judgment, decree dated 29.12.1994 passed by learned Sub Judge, st Class, Sundernagar in Civil Suit No. 180 of 1990.

(2.) THE facts, in brief, are that the respondents had filed a suit that respondents and Narain Singh deceased defendant No.1 were joint owners of land measuring 332.97 sq.meters comprised in Khasra No. 1606 vide jamabandi 1984 -85, mauja Bhojpur, Tehsil Sundernagar, District mandi, H.P. It is not necessary to give further details pleaded in the plaint or in the written statement in view of question of abatement of appeal raised by respondents. It is suffice to add that the appellants contested the suit by taking preliminary objections of suppression of material facts. The respondents have not challenged the Will of Smt. Bhajyali. The suit has not been filed for declaration, hence the suit is not maintainable. However, on merits, legal character of the suit land being joint land was admitted. The appellants have prayed for dismissal of the suit. The replication was filed by respondents . The learned trial Court decreed the suit on 29.12.1994 and restrained the appellants from raising any construction over the suit land and changing its nature in any manner whatsoever till the land is actually partitioned by metes and bounds. The prayer for demolition of construction by way of mandatory injunction was declined. In appeal, learned District Judge on 30.9.1999 has affirmed the judgment, decree dated 29.12.1994, hence the second appeal which has been admitted.

(3.) THESE applications have been contested by filing the replies. It has been stated that the application for setting aside abatement and bringing on record legal representatives of respondent No.2 is hopelessly time barred and in the application for condonation of delay, no sufficient cause has been shown. It has been stated that respondent No.2 Basant Singh has died on 16.3.2003 who was none -else but close relative of appellants. The appellants had joined the death ceremonies of respondent No.2 since the day one. The appellants and respondent No.2 used to live in same house (Chowki) in village Kharsi, Tehsil Sundernagar, Distt. Mandi. The appellants were aware about the procedural law, earlier on the death of appellant No.1 Narain Singh an application was filed through the same counsel for bringing on record the legal representatives of appellant No.1 alongwith an application for condonation of delay. The appellants have filed the present applications after about 6 1/2 years from the date of death of respondent No.2. The appellants were careless. It is not possible to believe that the appellants had not contacted their counsel during this period of 6 1/2 years to know the fate of their appeal. The respondents have prayed for dismissal of the applications. The appellants have filed rejoinders and reiterated their stand.