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IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 30th OF SEPTEMBER, 2022

SECOND APPEAL No. 492 of 2015

BETWEEN:-
1. BADRI PRASAD S/O LATE DASHRATH RASAD,
AGED ABOUT 64 YEARS, VILL. BIRSINGHPUR
TEH. SOHAGPUR SHAHDOL (MADHYA
PRADESH)

2. RAMESHWAR PRASAD S/O LATE DASHRATH

PRASAD, AGED ABOUT 53 YEARS, VILLAGE
BIRSINGPUR TAHSIL SOHAGPUR (MADHYA
PRADESH)

.....APPELLANTS
(BY SHRI ASHOK LALWANI-ADVOCATE)

AND
1. SMT. ALPANA W/O LATE SHRI RAJKAMAL
SHIVHARE, AGED ABOUT 50 YEARS, VILL.
BIRSINGHUR PALLI, TEH. SOHAGPUR
SHAHDOL (MADHYA PRADESH)

2. PRINCE S/O LATE SHRI RAJKAMAL SHIVHARE,

AGED ABOUT 30 YEARS, BIRSINGPUR PALLI,
TAHSIL SOHAGPUR (MADHYA PRADESH)

3. KING S/O LATE SHRI RAJKAMAL SHIVHARE,

AGED ABOUT 27 YEARS, VILLAGE BIRSINGPUR
TAHSIL SOHAGPUR (MADHYA PRADESH)

4. SALLEEN S/O LATE SHRI RAJKAMAL

SHIVHARE, AGED ABOUT 25 YEARS, VILLAGE
BIRSINGPUR TAHSIL SOHAGPUR (MADHYA
PRADESH)

5. VARSHA D/O LATE SHRI MUKESH SHIVHARE,

AGED ABOUT 22 YEARS, VILLAGE
BIRSINGHPUR PALLI, TAHSIL SOHAGPUR
(MADHYA PRADESH)

6. SUDHA D/O LATE SHRI MUKESH SHIVHARE,

AGED ABOUT 22 YEARS, VILLAGE
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BIRSINGHPUR PALLI, TAHSIL SOHAGPUR
(MADHYA PRADESH)

7. DEEPESH S/O SITARAM SHIVHARE, AGED

ABOUT 20 YEARS, VILLAGE BIRSINGPUR PALLI,
TAHSIL SOHAGPUR (MADHYA PRADESH)

8. RAKESH SHIVHARE S/O SHRI SITARAM

SHIVHARE, AGED ABOUT 50 YEARS, VILLAGE
BIRSINGPUR TAHSIL SOHAGPUR (MADHYA
PRADESH)

9. COLLECTOR THE STATE OF MADHYA PRADESH

DISTT. SHAHDOL, M.P. (MADHYA PRADESH)

10. JAGDISH PRASAD S/O LATE DASHRATH

PRASAD, AGED ABOUT 70 YEARS, VILLAGE
BIRSINGPUR TAHSIL SOHAGPUR (MADHYA
PRADESH)

.....RESPONDENTS
(BY SHRI SHIV KUMAR RAI-ADVOCATE FOR RESPONDENTS 5 & 6
)

Th is appeal coming on for hearing this day, t h e court passed the

following:
ORDER
Heard on I.A. No. 5474/2015, which is an application for condonation of
delay in filing of the second appeal.
Office has reported this appeal to be barred by 3806 days.
This second appeal has been preferred by the legal representatives of
original defendant-Lt. Shri Dashrath Prasad challenging the judgment & decree
dated 20.08.2004 whereby learned 2nd Additional District Judge, Shahdol, has
decreed the civil suit filed by original plaintiff-Smt. Champa Devi, whose
descendants are the present respondents, reversing the judgment & decree
dated 31.03.2001 passed by learned 1st Civil Judge Class-II, Shahdol in civil
suit No. 116-A/1998.
Condonation of delay has been sought on the ground that the
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predecessor of the appellants was litigating the first appeal through Advocate
Mr. P.K. Sharraf and was confident that Mr. Sharraf must have got the second
appeal preferred. In paragraph 5 of the application, it is alleged that the
appellants were confident that the counsel engaged on behalf of Lt. Shri
Dashrath Prasad diligently pursuing the appeal. It is further alleged that the
counsel appearing in the trial Court had assured the appellants that the counsel
engaged before the High Court Mr. A.G. Dhande would intimate to the
appellants about the fate of the appeal and it is further contended that Mr. A.G.
Dhande neither intimated the appellants about the fate of the appeal nor called
them to prefer the application for substitution of legal representatives. When in
the month of March 2015, the appellant 1 came to enquire about the fate of the
appeal, he was informed that Mr. A.G. Dhande had died long back and upon
enquiry it is revealed that no appeal has been preferred by Mr. A.G. Dhande.
With these allegations, the delay in filing of the appeal has been prayed to be
condoned.
Respondents 5 & 6 who are represented through Shri Shiv Kumar Rai-
Advocate has not filed any reply and other respondents 8 & 10 have also not
filed any reply despite service of summons.
Heard learned counsel for the parties and perused the record.
After perusal of the application for condonation of delay, it is clear that

there is no averment to the effect that the appellant's predecessor-Lt. Shri

Dashrath Prasad engaged Mr. Shri A.G. Dhande Advocate, who preferred the
second appeal but it has been mentioned in the application that counsel
appearing before Court below Shri P.K. Sharraf must have got the second
appeal preferred and in paragraph 4 of the application, it is clear that Lt. Shri
Dashrath Prasad has died without any intimation of the status of the second
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appeal to the present appellants. However, no date of death of Lt. Shri Dashrath
Prasad has been mentioned in the application. Further, no date of death of Mr.
A.G. Dhande-Advocate has also been mentioned in the application. It is also
not mentioned in the application that Lt. Shri Dashrath Prasad, who approached
to Shri A.G. Dhande-Advocate for filing the second appeal.
In view of the aforesaid averments made in the application, on what basis
the appellant 1 came to enquire about the second appeal in the month of March
2015 and where he enquired is also not mentioned in the application. In my
considered opinion, if the averments made in the application are accepted as
true then also, it cannot be said that there is sufficient ground for condonation
of delay in filing of the appeal. On merits also, there is nothing in the second
appeal because on the basis of registered gift deed, property was gifted to Smt.
Champa Devi by her husband Sitaram and therefore, after gift deed Sitaram had
no right to sale the property to the descendant- Lt. Shri Dashrath Prasad.
Having found proved the gift deed the learned first appellate Court has decreed
the suit.
In view of the aforesaid, there being no reasonable explanation of delay,
application (I.A. No. 5474/2015) deserves to be and is hereby dismissed.
Resultantly, the second appeal is also dismissed as barred by
limitation.

(DWARKA DHISH BANSAL)

JUDGE
Pallavi

KUMARI PALLAVI SINHA

2022.10.11 17:18:22 +05'30'