Karnataka High Court
Siddappa S/O Bharamappa Bilagi @ Bidari vs Somawwa W/O Mayappa Bilagi @ Bidari on 29 March, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 29 t h DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.S.A. NO.100410/2021 (PAR/POS)
BETWEEN
SIDDAPPA
S/O BHARAMAPPA BILAGI @ BIDARI
AGE 51 YEARS,
OCC: AGRICULT URE,
R/O SANGAM CROSS,
BAGALKOT .
...APPELLANT
(BY SRI.S.S.NIRANJAN, ADV.)
AND
1 . SMT.SOMAWWA
W/O MAYAPPA BI LAGI @ BIDARI
AGE 43 YEARS,
OCC: HOUSEHOLD,
R/O BEVINMATTI,
TQ & DIST BAGLAKOT.
2 . SMT.DYAMAVVA
W/O HULLAPPA HULLANNAVAR
AGE 23 YEARS,
OCC: HOUSEHOLD,
R/O BEVINMATTI,
TQ & DIST BAGLAKOT.
3 . SMT. SHANTAVVA
W/O KALLAPPA BILAGI @ BIDARI
AGE 48 YEARS,
2
OCC: HOUSEHOLD,
R/O BEVINMATTI,
TQ & DIST BAGLAKOT.
4 . SMT.SHIDDALINAPPA
S/O KALLAPPA BILAGI @ BIDARI
AGE 25 YEARS,
OCC: HOUSEHOLD,
R/O BEVINMATTI,
TQ & DIST BAGLAKOT.
5 . SMT.LAKKAVVA
W/O NINGAPPA KARADI
AGE 31 YEARS,
OCC: HOUSEHOLD,
R/O BEVINMATTI,
TQ & DIST BAGLAKOT.
6 . SMT.KASTUREVA
W/O MUDAKAPPA BILAGI @ BIDARI
AGE 49 YEARS,
OCC: HOUSEHOLD,
R/O KALASAGOPPA,
TQ & DIST BAGLAKOT.
7 . SHRI.KARIYAPPA
S/O MUDAKAPPA BILAGI @ BIDARI
AGE 28 YEARS,
OCC: HOUSEHOLD,
R/O KALASAGOPPA,
TQ & DIST BAGLAKOT.
8 . SMT.SAVITA
W/O BHIRAPPA GADAG
AGE 30 YEARS,
OCC: HOUSEHOLD,
R/O KONNUR, TQ: JAMAKHANDI,
DIST BAGLAK OT.
9 . SMT.MAYAWWA
W/O TAMMANEPPA TAMMANI
AGE 53 YEARS,
OCC HOUSEHOLD,
R/O KONNUR, TQ: JAMAKHANDI,
DIST BAGLAK OT.
3
10 . SMT.AKKAWWA
W/O KAREPPA HORATI
AGE 43 YEARS,
OCC HOUSE HOLD,
R/O KONNUR,
TQ JAMAKHANDI,
DIST BAGALK OT.
11 . SHRI.KARABASAYYA
S/O GURAPADAYYA HORAGINAMATH
AGE 55 YEARS,
OCC AGRI CULT URE,
R/O KONNUR,
TQ JAMAKHNADI,
DIST BAGALK OT.
...RESPONDENTS
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 24.09.2020 PASSED IN
R.A.NO.164/2017 ON THE FILE OF THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BAGALKOT, SIT TING AT
JAMKHANDI, DISMISSING THE APPEAL AND CONFRIMING THE
JUDGMENT AND DECREE DTD 23.09.2017 PASSED IN O.S.
NO.35/2014 ON T HE FILE OF THE PRINCIPAL SENI OR CIVIL
JUDGE, JAMKHANDI, DECREEING THE SUIT FILED FOR
DECLARATION AND PARTITION AND SEPARATE POSSESSION.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT , DELIVERED THE FOLLOWING:
JUDGMENT
Challenging impugned judgment and decree dated 24.09.2020, passed by I Addl. District & Sessions Judge, Bagalkot, sitting at Jamkhandi (for short 'first appellate court') in R.A.no.164/2017 dismissing appeal, confirming judgment and decree dated 23.09.2017 passed by Prl. 4 Senior Civil Judge & JMFC., Jamkhandi (for short 'trial court') in O.S.no.35/2014, appellant has preferred this appeal.
2. Appellant herein was defendant no.7 in suit and appellant in first appeal, while respondents no.1 and 2 were plaintiffs no.1 and 2 in suit and respondents no.1 and 2 in first appeal. Respondents no.3 to 11 herein were defendants no.1 to 10 in suit and respondents no. 3 to 11 in first appeal. For sake of convenience, parties will be referred to as per their ranks before trial court.
3. Brief facts as stated are that OS no.35/2014 was filed seeking for decree of partition and separate possession of plaintiff's 1/6 t h share in suit properties. In the plaint, it was stated that plaintiffs and defendants no.1 to 8 constituted Hindu Joint Family. It was stated that Bharmappa - propositus had four sons and two daughters viz., Kallappa, Mudakappa, Siddappa, Mayappa, Mayawwa and Akkawwa and his wife - Savantrewwa died leaving behind children. Suit properties were ancestral joint family properties of Bharamappa. Plaintiffs were wife 5 and daughter of Mayappa, one of sons of propositus. After his death, they succeeded to his interest in joint family properties. It was further stated that after death of propositus, defendant no.7 - Siddappa was managing affairs of family, while plaintiffs went to Bevinamatti- maternal home of plaintiff no.1 in the year 2004 and used to visit Konnur, occasionally. When plaintiffs' demanded their share in joint family properties, it was refused by defendant no.7 on the ground that plaintiff no.1 and Mayappa had executed relinquishment in his favour and defendant no.8. On the said basis, there was illegal sale of land measuring 3 acres 30 guntas to defendant no.10 on 30.08.2010, who was not a member of family.
4. On service of suit summons, defendant no.7 filed written statement denying plaint averments and contending that there was prior partition in the year 2004, wherein wife and two daughters and Mayappa had relinquished their share in land bearing R.S.no.416/2A/1, on a stamp paper of Rs.1,000/-. Accordingly, revenue entries were changed and defendant no.7 was in possession of suit property. Death of Mayappa in 2004 6 was also denied and it was contended that his whereabouts were unknown.
5. Defendant no.10 filed separate written statement reiterating contents in written statement of defendant no.7 and in addition asserting that he was a bonafide purchaser for value.
6. Based on pleadings, trial court framed following issues:
1) Whether plaintiffs prove that suit properties are the ancestral properties?
2) Whether defendants prove that there was a partition in the year 2004 in respect of suit properties?
3) Whether plaintiffs are entitled for the share as prayed?
4) What order or decree?
Addl. issue:
1)Whether defendant no.10 proves that he is bonafide purchaser of the suit property?7
7. Thereafter plaintiff no.1 examined himself as PW1. Exhibits P1 to P4 were marked. On behalf of defendants, only defendant no.10 examined himself as Dw1. No exhibits were marked.
8. On consideration, trial court decreed plaintiffs' suit for 1/6 t h share in suit schedule properties. It was also decreed that sale deed dt.30.08.2010 as not binding upon share of plaintiffs. Aggrieved thereby, defendant no.7 filed appeal in R.A.No.164/2017 on several grounds. It was contended that adequate opportunity was not granted to defendant no.7 to adduce evidence and produced documents regarding his claim over suit schedule property. It was also contended that defendant no.10 was a bonafide purchaser and therefore, setting aside of sale deed was not maintainable. It was further contended that due to unavoidable circumstances, appellant was not able to adduce evidence. Therefore, defendant no.7 sought for setting aside judgment and decree passed by trial court and to remand matter affording opportunity to appellant to adduce evidence on merits.
8
9. Based on contentions, first appellate court framed following points for its consideration:
(1) Whether the plaintiffs have proved that the suit schedule properties are the ancestral and joint family properties of them and the defendants 1 to 9?
(2) Whether 7 t h defendant has prove that already there was partition in the year 2004 and Mayappa has relinquished his right of share in the suit properties?
(3) Whether the 10 t h defendant has proved that he is the bonafide purchaser of item No.B of the suit schedule property for value in good faith?
(4) Whether the plaintiffs are entitled for the share in the suit schedule property as prayed?
(5) Whether it is necessary to interfere with the judgment and decree passed by trial court?
(6) To what Order?
10. On consideration, it answered point nos.1 and 4 in affirmative, point nos.2, 3 and 5 in negative and point 9 no.6 by dismissing appeal. Aggrieved thereby, defendant no.7 is in appeal.
11. Sri. S.S.Niranjan, learned counsel for appellant, submitted that judgment and decree passed by both courts were illegal, erroneous and contrary to facts and law. It was submitted that suit was valued at Rs.40,00,000/- for purpose of pecuniary jurisdiction. Therefore, first appeal could be filed only before this Court. Therefore order of first appellate court was without jurisdiction. It was further contended that appellate court did not consider grounds urged and without proper findings passed impugned judgment and decree.
12. Assailing impugned judgment and decree passed by trial court, it was submitted specific defence taken by defendant no.7 that there was prior partition in the year 2004 substantiated by relevant records was ignored.
13. In the light of above submissions, learned counsel proposed following substantial questions of law for consideration:
10
i) Whether the judgment and Decree of the 1 s t Appellate Court and Trial Court below are sustainable under the given facts and circumstances of the case?
ii) Whether the 1st appellate Court is justified in dismissing the appeal and confirming the judgment and decree of the Trial Court?
14. From above submissions, relationship of plaintiffs and defendants no 1 to 8 is not in dispute. Nature of properties as joint family properties of propositus Bharamappa is also not in dispute. While, plaintiffs contend that upon death of Mayappa, one of sons of propositus, they succeeded to his interest and were entitled for partition, defendant no.7 is opposing their claim on the basis of prior partition in the year 2004 and relinquishment. In order to establish their case, that suit schedule properties were joint family properties, examined plaintiff No.1 as Pw.1 and got marked Record of rights of Sy.no.416/2 and 416/5 of Konnur village, as Ex.P1 and P2; death certificate of Mayappa as Ex.P.3. Copy of application given by defendant no.7 to Tahsildar, 11 Jamkhandi for mutation as Ex.P.4. Trial court examined deposition of PW.1 and contents of exhibits. It observed that PW.1 reiterated plaint averments in deposition. Ex.P.1 indicated Sy.no.416/2 standing in name of defendant no.7 and Ex.P2 that R.S.no.416/5 standing in the name of defendant no.10. Ex.P.3 - death certificate established that Mayappa died in Wenlock hospital Mangaluru. Ex.P.4 - application given to Tahsildar Jamkhandi by legal representatives of Bharmappa on 19.04.2004 indicated that propositus died on 09.05.1997 and one of sons died on 16.11.1989. It also stated that wife of Bharmappa namely Savantrewwa and daughter Akkawwa and son Mayappa had consented for mutation.
15. Trial court observed that Ex.P.4 was submitted by defendant no.7 alone by mentioning other names without their signature. It held that said document would shift burden on defendant no.7 to establish that there was prior partition in 2004 and relinquishment by some of legal representatives of Bharmappa and based on said consent, mutations were effected. It observed that along with application defendant no.7 sought to produce several 12 documents, but which were not marked in evidence. One of said document was consent deed. Trial court observed that stamp paper on which consent deed was drawn was purchased on 21.04.2004. It contained recitals indicating Mayappa relinquishing his right and giving consent for entering name of others. But, Ex.P.4 application, given by defendant no.7 was dated 19.04.2004 referring to consent deed. Therefore, a doubt was cast on validity of consent deed. In the light of above circumstances, trial court drew adverse inference against defendant not entering witness box and also for his failure to cross examine Pw.1.
16. Insofar as defendant no.10, it observed that except adducing oral evidence, defendant no.10 did not adduce any other evidence to establish that he was a bonafide purchaser. His admission in cross-examination that he was also resident of Konnur village was aware of death of Savantrewwa after death of propositus Bharmappa and they having four sons and 2 daughters, as establishing knowledge about other persons of family having interest in suit property. His further admission that 13 there was no partition and 8 acres of suit property was ancestral property. Trial court further took note of his admission that he has not seen relinquishment deed to conclude that defendant no.10 was not a bonafide purchaser and therefore sale deed of defendant no.10 would not be binding on plaintiffs shares.
17. First appellate court upon re-appreciation confirmed finding of trial court referring to contents of Ex.P.1, wherein entry in cl.no.10 of record of rights showing date of relinquishment as 29.08.2013, it was held that said date was after date of death of Mayappa. Even first appellate court drew adverse inference against defendant no.7 for not stepping into witness box and for not producing consent deed. It also refer to deposition of Dw.1, wherein he admitted about all the legal representatives of propositus Bharmappa. Taking note of his admission, that he purchased schedule property after verifying entries in RTC as false and holding that he was fully aware of interest of other joint family members in suit property, concluded that defendant no.10 was not a bonafide purchaser. On the said reasoning and on the 14 conclusion that shares allotted by trial court was fully in accordance with law, proceeded to dismiss appeal with costs.
18. The Hon'ble Supreme Court in several decisions has held that errors of jurisdiction would not be fatal without establishing prejudice caused. In Kiran Singh v. Chaman Paswan, reported in AIR 1954 SC 340, it is held:
"16. We have now to see whether the appellants have suffered any prejudice by reason of the undervaluation. They were the plaintiffs in the action. They valued the suit at Rs 2959. The defendants raised no objection to the jurisdiction of the court at any time. When the plaintiffs lost the suit after an elaborate trial, it is they who appealed to the District Court as they were bound to, on their valuation. Even there, the defendants took no objection to the j urisdiction of the District Court to hear the appeal. When the decision went on the merits against the plaintiffs, they preferred SA No. 1152 of 1946 to the High Court of Patna, and if the Stam p Reporter had not raised the objection to the valuation and to the court-fee paid, the plaintiffs would not have challenged the jurisdiction of the District Court to hear the appeal. It would be an unfortunate state of the law, if the plaintiffs who initiated proceedings in a court of their own choice could subsequently turn round and question its j urisdiction on the ground of an error in valuation which was their own. If the law were that the decree of a court which would have had no jurisdiction over the suit or appeal but for the overvaluation or undervaluation should be treated as a nullity, then of course, they would not be stopped from setting up want of 15 jurisdiction in the court by the fact of their having themselves invoked it. That, however, is not the position under Section 11 of the Suits Valuation Act. Why then should the plaintiffs be allowed to resile from the position taken up by them to the prejudice of their opponents, who had acquiesced therein?
17. T here is considerable authority in the I ndian courts that clauses (a) and (b) of Section 11 of the Suits Valuation Act should be read conjunctively, not withstanding the use of the word "or". If that is the correct interpretation, the plaintiffs would be precluded from raising the objection about jurisdiction in an appellate court. But even if the two provisions are to be construed disjunctively, and the parties held entitled under Section 11(1)(b) to raise the objection for the first time in the appellate court, even then, the requirement as to prejudice has to be satisfied, and the party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prej udice. Prej udice can be a ground for relief only when it is due to the action of another party and not when it results from one's own act. Courts cannot recognise that as prejudice which flows from the action of the very party who complains about it. Even apart from this, we are satisfied that no prejudice was caused to the appellants by their appeal having been heard by the District Court. There was a fair and full hearing of the appeal by that court; it gave its decision on the merits on a consideration of the entire evidence in the case , and no injustice is shown to have resulted in its disposal of the matter. The decision of the learned Judges that there were no grounds for interference under Section 11 of the Suits Valuation Act is correct."
Em ph a si s su ppli e d This view is reiterated in K.P. Ranga Rao v. K.V. Venkatesham, re ported in (2015) 13 SCC 514:
"8. Obviously Section 21 will apply in the three situations mentioned therein: the first situation 16 refers to the place of suing; the second situation refers to pecuniary limits of the court's jurisdiction; and the third refers to local limits of the court's jurisdiction. In each of these cases it is stated that an appellate court or revisional court shall not allow an objection to the place of suing (which refers to Section 16 in the present case) unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement. What follows is important. An objection as to place of suing cannot be allowed unless there has been a consequent failure of justice.
9. In a classic e xposition of the law, in Kiran Singh v. Chaman Paswan [AIR 1954 SC 340 :
(1955) 1 SCR 117] , after stating that a defect of jurisdiction strikes at the very authority of the court to pass any decree and such a defect cannot be cured even by consent of parties, the law has been laid down as follows: (AIR p. 342, para 7) "7. ... T he policy underlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act, 1887 is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of j ustice , and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits."
10. In the present case, we find this statement of law would apply on all fours. The judgment of the trial court has been decided issuewise , on the merits, after hearing both the parties. The suit has finally been decreed. Consequently this judgment cannot be reversed purely on technical grounds unless there is a failure of justice , which we have seen, is nobody's case."
17And recently in Om Prakash Agarwal v. Vishan Dayal Raj poot, reported in (2019) 14 SCC 526:
"57. The policy underlying Section 21 of Code of Civil Procedure is that when the case has been tried by a court on merits and the judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in failure of justice. The provisions akin to Section 21 are also contained in Section 11 of the Suit Valuation Act, 1887 and Section 99 of the Code of Civil Procedure. This Court had the occasion to consider the principle behind Section 21, Code of Civil Procedure and Section 11 of the Suit Valuation Act, 1887 in Kiran Singh v. Chaman Paswan [K iran Singh v. Chaman Paswan, AIR 1954 SC 340] . In para 7 of the judgment following was laid down: (AIR p. 342) "7. ... T he policy underlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act is the same , namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of j ustice , and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore , that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act."
58. One more submission which was raised in the said appeal was considered by this Court. One of the submission of the appellant who had instituted the suit in the subordinate court was that as per the revised valuation, the appeal against the decree of the subordinate Judge did not lie before the District Court but to the High Court, hence, 18 the judgment of the District Judge in appeal should be ignored. The appeal in the High Court be treated as first appeal. I t was contended that appellant has been prejudiced in the above manner. Rejecting the above submissions, this Court laid down following in paras 11 and 12:
(Kiran Singh case [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340] , AIR p. 343) "11. ... This argument proceeds on a misconception. The right of appeal is no doubt a substantive right, and its de privation is a serious prejudice; but the appellants have not been deprived of the right of appeal against the judgment of the Subordinate Court. The law does provide an appeal against that judgment to the District Court, and the plaintiffs have e xercised that right. Indeed, the undervaluation has enlarged the appellants' right of appeal, because while they would have had only a right of one appeal and that to the High Court if the suit had been correctly valued, by reason of the undervaluation they obtained right to two appeals, one to the District Court and another to the High Court. The complaint of the appellants really is not that they had been deprived of a right of appeal against the judgment of the subordinate court, which they have not been, but that an appeal on the facts against that judgment was heard by the District Court and not by the High Court. This objection therefore amounts to this that a change in the forum of appeal is by itself a matter of prejudice for the purpose of Section 11 of the Suits Valuation Act.
12. T he question, therefore , is, can a decree passed on appeal by a court which had jurisdiction to entertain it only by reason of undervaluation, be set aside on the ground that on a true valuation that court was not competent to entertain the appeal? Three High Courts have considered the matter in Full Benches, and have come to the conclusion that mere change of forum is not a prejudice within the meaning of Section 11 of the Suits Valuation Act. Vide Kelu Achan v.19
Cheriya Parvathi Nethiar [Kelu Achan v. Cheriya Parvathi Nethiar, 1923 SCC OnLine Mad 356 : I LR (1923) 46 Mad 631] , Moolchand Motilal v. Ram Kishen [Moolchand Motilal v. Ram Kishen, 1933 SCC OnLine All 2 : ILR (1933) 55 All 315] and Ramdeo v. Raj Narain [Ramdeo v. Raj Narain, 1948 SCC OnLine Pat 91 : ILR (1948) 27 Pat 1091] . In our judgment, the opinion expressed in these decisions is correct."
19. In the case on hand, after filing the appeal, appellant has pursued the same in all earnest. The appellate court has heard and decided the appeal on merits after providing opportunity to both sides. Absolutely no case of any prejudice having been caused to the appellant is made out.
20. Apart from above, it is seen that appellant himself filed appeal before first appellate court. Only after being unsuccessful in such appeal, he is seeking to contend that appeal was without jurisdiction, contrary to the principle of law that one cannot be permitted to take benefit of his own mistake. In Kusheshwar Prasad Singh v. State of Bihar reported in (2007) 11 SCC 447, it is held:
"14. In this connection, our attention has been invited by the learned counsel for the appellant to 20 a decision of this Court in Mrutunj ay Pani v. Narmada Bala Sasmal [AIR 1961 SC 1353] wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).
15. I n Union of India v. Major General Madan Lal Yadav [(1996) 4 SCC 127 : 1996 SCC (Cri) 592] the accused army personnel himself was responsible for delay as he escaped from detention. Then he raised an obj ection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time-barred. This Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was stated:
"It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."
16. I t is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong". 21
21. In Indore Development Authority (LAPSE-5 J.) v. Manoharlal, reported in (2020) 8 SCC 129, it is held:
"306. When the authorities are disabled from performing duties due to impossibility, would be a good excuse for them to save them from rigour of provisions of Section 24(2). A litigant may be right or wrong. He cannot be permitted to take advantage of a situation created by him of interim order. The doctrine "commodum ex inj uria sua nemo habere debet" that is convenience cannot accrue to a party from his own wrong. Provisions of Section 24 do not discriminate litigants or non- litigants and treat them differently with respect to the same acquisition, otherwise , anomalous results may occur and provisions may become discriminatory in itself.
320. The maxim actus curiae neminem gravabit is founded upon the principle due to court proceedings or acts of court, no party should suffer. If any interim orders are made during the pendency of the litigation, they are subject to the final decision in the matter. In case the matter is dismissed as without merit, the interim order is automatically dissolved. In case the matter has been filed without any merit, the maxim is attracted commodum ex injuria sua nemo habere debet, that is, convenience cannot accrue to a party from his own wrong. No person ought to have the advantage of his own wrong. In case litigation has been filed frivolously or without any basis, iniquitously in order to delay and by that it is delayed, there is no equity in favour of such a person. Such cases are required to be decided on merits. In Mrutunjay Pani v. Narmada Bala Sasmal [Mrutunjay Pani v. Narmada Bala Sasmal, AIR 1961 SC 1353] , this Court observed that :
(AIR p. 1355, para 5) "5. ... The same principle is comprised in the Latin maxim commodum ex injuria sua nemo habere 22 debet, that is, convenience cannot accrue to a party from his own wrong. To put it in other words, no one can be allowed to benefit from his own wrongful act."
22. As stated above, trial court and first appellate court have passed impugned judgment and decree after due consideration of evidence on record. Their conclusions are neither capricious nor perverse. Hence, I do not find any substantial questions of law arise for consideration in this appeal. Appeal dismissed.
Sd/-
JUDGE PSG