Bombay High Court
Shri. Dada S/O. Maroti Mahure, Through ... vs Namdeo S/O. Vishwanath Dukare And ... on 22 October, 2019
Author: Manish Pitale
Bench: Manish Pitale
cas496.19.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL APPLN. (S) NO. 496 OF 2016
IN
SECOND APPEAL ST. NO. 7455 OF 2016
Dada Maroti Mahure and other
-Vs.-
Namdeo Vishwanath Dukare and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr.R.S.Nagpure, counsel for the appellants.
CORAM : MANISH PITALE, J.
DATE : 22.10.2019 CIVIL APPLN. NOS.1859 & 1860 OF 2019.
These are applications filed on behalf of the appellants seeking restoration of the applications for bringing on record legal representatives of deceased respondent Nos.2 to 5 as also the application for condonation of delay in moving the said application. There is an application moved for condonation of delay in moving the application for restoration.
2. The record shows that the learned Registrar had passed order on 07/09/2017, dismissing the applications for bringing on record legal representatives of deceased respondent Nos.2 to 5 and for condonation of delay in moving the said application, due to default on the part of the appellants. It was recorded that despite opportunities KHUNTE ::: Uploaded on - 23/10/2019 ::: Downloaded on - 24/10/2019 00:35:05 ::: cas496.19.odt 2/6 granted on various dates between 22/06/2017 and 24/08/2017, copies of the applications were not supplied and that therefore, the applications were dismissed in default.
3. The present applications show that they were filed on 03/09/2019. Although the number of days of delay is not mentioned in the application for condonation of delay, it is found that there is delay of about one year and 11 months in moving these applications. The explanation given in the application for condonation of delay is not satisfactory and therefore, it is dismissed. It is found that by virtue of the application for bringing on record legal representatives the appellants were seeking to bring on record legal representatives of deceased respondent Nos.2 to 5, who are nothing but proforma respondents, because all of them were co-defendants of the appellants before the Trial Court. In these circumstances, and particularly when it is found that the reasons for delay are not satisfactory the application for condonation of delay i.e. Civil Application (O) No.1859 of 2019 is dismissed. Consequently, the application for restoration i.e. Civil Application (O) No.1560 of 2019 is also dismissed.
4. As a consequence, Civil Application (O) Nos.341 and 342 of 2017 are also dismissed.
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5. In this second appeal, an application for condonation of delay of 401 days was filed bearing Civil Application (S) No.496 of 2016, in which notice was issued as far as back on 10/06/2016. It was during the pendency of the said civil application that the above mentioned application for bringing on record legal representatives of deceased respondent Nos.2 to 5 was moved.
6. Record shows that the sole contesting respondent No.1 (original plaintiff) was served and he is represented through counsel. Today, when the matter was called out, none has appeared on behalf of the sole contesting respondent No.1. The learned counsel appearing for the appellants is heard on the question of condonation of delay in filing the second appeal.
7. It is explained on behalf of the appellants/ applicants that there was an application for review filed on their behalf before the Appellate Court after the appeal was dismissed on 24/11/2014. It is pointed out that the review application was ultimately dismissed on 11/12/2015 and that major portion of the delay of 401 days has been caused due to pendency of review application before the Lower Appellate Court.
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8. The explanation given in the application for condonation of delay appears to be reasonable and therefore, the application is allowed and the delay is condoned. The application stands disposed of.
SECOND APPEAL ST. NO. 7455 OF 2016 The learned counsel for the appellants was heard on the merits of the case. It was pointed out by the learned counsel for the appellants that the two Courts below have concurrently held in favour of the contesting respondent (original plaintiff) and injunction has been granted against the appellants restraining them from using a way from Chinchala to Takali, Tahsil Deoli, District Wardha, part of which runs through the agricultural field of the said contesting respondent No.1. It is pointed out that the Courts below took into consideration the documentary evidence, including the vazibul entries and the revenue maps as also nistar patraks, wherein it was found that the way as claimed by the appellants did exist. Yet, the Courts below held against the appellants on the ground that the appellants/ original defendants failed to show that they had used the cart way going through the field of the contesting respondent. It was also pointed out that the Trial Court in the present case placed much emphasis on the fact that a revenue proceeding in the present case had been KHUNTE ::: Uploaded on - 23/10/2019 ::: Downloaded on - 24/10/2019 00:35:05 ::: cas496.19.odt 5/6 remanded by the Sub-Divisional Officer to the Tahsildar, which also concerned the same controversy between the parties. It was submitted that merely because the Revenue Authority had remanded the matter, could not be a reason for the Courts below to hold against the appellants. It was also pointed out that subsequently by order dated 11/09/2015 the Sub-Division Officer himself found that existence of the way was apparent from the documents on record and that appropriate change in the map was permitted.
2. Based on all these documents, it was submitted on behalf of the appellants that the Courts below committed an error in passing decree in favour of the contesting respondent.
3. In view of the above, issue notice for final disposal on the following substantial questions of law:
(i) Whether the Courts below were justified in holding against the appellants and granting decree in favour of the contesting respondent (original plaintiff), despite noticing the fact that the revenue maps, vazibul entries and nistar patrak did show existence of way as claimed by the appellants through the field of the contesting respondent?
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(ii) Whether the Courts below were justified in placing the burden on the appellants (original defendants) to prove their case when it was for the contesting respondent (original plaintiff) to have proved his case as per the contentions raised by him before the two Courts below?
4. Notice shall be returnable in six weeks.
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