NANCY DEVI Vs. SIRAJ-UD-DING WANI

JUDGEMENT

(1.) IN the court of Additional District and Session Judge, Srinagar suit for declaration and mandatory injunction in respect of 15 marlas of land in survey Nos. 1525, 1523, 1527, and 1526 min situated at Rambagh Nursingarh was filed on 12.8.1996 by one Siraj -ud -din respondent against Jia Lal Sapru through his attorney Kashinath Kachroo who also happens to be son -in -law of said Jia Lal Saproo. The suit was decreed on admission on 12.8.96.

(2.) AGAINST this decree appellants filed the appeal alongwith application for condonation of delay and during pendency of the appeal also filed an application seeking leave of the court to file the appeal as these appellants are not parties to the suit and decree appealed against. The aplication for leave to appeal is filed on the ground that the two applicants Nancy Devi and Vijay Dhar are the two daughters of the said Jia Lal Saproo. There are also two other daughters of Late Jia Lal Saproo who too have not been made party to the suit. The so called attorney holder is in fact son -in -law of Late Jia Lal Saproo, who has exploited his relation, status and position by admitting the suit averments, when infact he could not have done so and illegaly to utter ignorance of the daugther/passed the share of these two daughters. Besides the Jia Lal against whom decree is passed had died on 26.6.1994, about two years earlier to the institution of suit and little more at the time when judgment and decree was passed on admission in the suit. The decree is in fact against a dead person. The decree is obtained in suppression of material facts, about the death and the shares of the daughters in the property, not made parties to the suit. The decree is obtained fraudently on collusion and misrepresentation of the facts.

(3.) THE application for leave to file appeal in terms is based on grounds on which the challenge is thrown to the impugned judgment and decree in the main appeal. Admittedly the appellants are not parties to the suit and decree and the decree is not all the binding on the appellants. If the judgment and decree is on suppression of material facts and outcome of the collusion interse the respondent and Kashinath Kachroo, son -in -law of deceased defendant as alleged then appellants have their own remedy. Whatever is stated in the application if taken on its face value, suggests the judgment is out -come of fraud, collusion and suppression of material facts. All these matters can be aptly gone into and considered in proceedings other than in this application and instant proceedings. The application for condonation of delay is barred by about six years (5 years 11 months and 20 days). It is revealed that the applicants on their own showing had the knowledge about the decree when they came across the mutation proceedings and applied to Tehsil Office for certified copy of the order. However, it is not revealed or given out either in the application or in the affidavit, when the applicants gained the knowledge of judgment/decree. No dates, months or year of acquiring such knowledge is disclosed. Obviously it is not possible to calculate the period of limitation in absence of definit, clear and firm plea qua the date of knowledge of applicants.