GANESH SHUKUL ALIAS NAGINA SHUKLA Vs. TIKADHAR SHUKUL

JUDGEMENT

(1.) This second Appeal arises out of the order dated 28-4-1983, passed by the District Judge, East Champaran in T.A. No. 104 of 1982, whereby he refused to condone the delay in filing the appeal and rejected the memo of appeal as time barred. Thus, as a result the appeal automatically stood disposed of.

(2.) The brief facts giving rise to this appeal are as follows: The Plaintiff-appellant filed a suit bearing Partition Suit No. 259 of 1976/45 of 1979 with a prayer for partition of the plaintiff's due share in the suit property, fully described in Schedule II of the plaint by metes and bounds and for allotment of separate Takhta to his share on appointment of survey knowing Pleader Commissioner. The matter was heard by the learned 1st Additional Subordinate Judge, Motihari and by his judgment dated 28-9-1982 he decreed the suit in part on contest with proportionate cost and observed in the order that the plaintiff is entitled for partition of his due share claimed in the plaint in the suit property, except the property which has been held as self acquired property of the defendants, as held in the judgment by metes and bounds and also for allotment of a separate Takhta of his share on appointment of survey knowing Pleader Commissioner through Court at his instance.

(3.) Being aggrieved and dissatisfied with the aforesaid order the plaintiff-appellant filed an appeal before the District Judge, East Champaran, Motihari and since the appeal was not filed within time, a petition under Section 5 of the Limitation Act was filed, which came up for consideration before the learned District Judge for condonation of delay. The learned District Judge heard the matter and found that the appellant's explanation is not satisfactory and hence the delay was not condoned and the memo of appeal was rejected. Hence this second Appeal has been filed by the plaintiff-appellant.