1. The present Second Appeal is filed by the appellant, challenging the judgment and decree dated 10.10.2022 passed by the District Judge-2, Kopargaon in Civil M.A. No.53/2017, which was filed challenging the judgment and decree dated 21.02.2015 passed by the 3rd Joint Civil Judge Junior Division, Kopargaon in Regular Civil Suit No.244/2011.

FACTS OF THE CASE

1] The plaintiff–Babasaheb Randhwane has filed suit for removal of encroachment and perpetual injunction bearing Regular Civil Suit No.244/2011 against the defendant no.1 Janabai Randhwane and defendant no.2 Vishwanath Randhwane [appellant herein].

2] The defendant no.1 though was served with the notice of the suit, however, has failed to appear in the suit and suit is decided ex parte as against defendant no.1. In so far as defendant no.2 i.e. appellant is concerned, though the defendant no.2 has filed his appearance, however, has failed to contest the suit and suit have gone uncontested against the defendant no.2 i.e. Vishwanath i.e. the present appellant. Thus, suit was proceeded against the defendants taking into consideration presumption available under Section 114-G of Indian Evidence Act for drawing adverse inference against the defendants herein.

3] The plaintiff has examined Map Surveyor Mr.Rashinkar as witness no.1 at Exh.23 and has further examined himself as witness no.2 at Exh.43. The property No.1A as shown in the suit belongs to the plaintiff whereas the suit property No.1B belongs to the defendant nos. 1 and 2. The property of the defendant nos. 1 and 2 is situated towards northern side of the plaintiff’s property. There was division of the suit property No.1A and 1B by a temporary embankment [bandh]. The plaintiff was doing service at different place and as such was cultivating the land through some labours. The defendant nos. 1 and 2 taking advantage of the said fact had caused damage to the embankment [bandh] and had encroached upon the area of 6 R. into the field of the plaintiff. The Taluka Inspector of Land Records [TILR] has conducted measurement on 04.02.2011 and has shown encroached area of 6 R. The plaintiff had time and again asked the defendants to remove encroachment to the extent of 6 R. into the field of the plaintiff, however, the defendants have refused to accept the said measurement carried out by the TILR showing encroachment. The suit has gone uncontested and there was no cross examination of the evidence led by the plaintiff and his witnesses and as such the same was unchallenged.

4] Witness no.2, namely, Rashinkar, who was working in the office of the Land Record, Kopargaon has stated in his evidence that he had carried out the measurement on 07.05.2010 over the property shown as 1A. The said witness had also stated in his testimony that while he had carried out the measurement, he had given notices to the defendants as well as other adjacent land owners and copy of the said notices are exhibited as Exh.34, which shows that the notices were given to Vitthal Balwant Shirsathi, Balu Shankar Gore, Chhagan Narayan Kanade and others. In absence of any cross examination, the said notices were proved applying presumption under Section 114-F of the Indian Evidence Act to have been received by the plaintiff, defendants as well as other adjacent land owners.

5] The witness no.2 Rashinkar has further stated that he has carried out actual measurement of the suit land on 04.02.2011 on the basis of plain table method and that on the date of measurement, the plaintiff, defendants as well as adjacent land owners were present. The said witness further stated that he had recorded the statement of witness, which is at Exh.35 and has prepared copies of A, B and C and handed over the [K Prat] copy to the plaintiff. The said copies of A, B and C were produced in the Court, which contained signature of the Assistant as well as Clerk and was exhibited as Exh.36. The witness no.2 had also stated in his testimony that while conducting measurement he had also taken the extract of the property’s survey record book with him, which is at Exh.37and also partition map, which is exhibited as Exh.38. The witness no.2 has further stated that original record shows that the plaintiff had the land up to 6 R. land, which is numbered as Gat No.238, which is shown as dotted line in the map and as such the defendants have encroached upon an area of 6 R. in the land of the plaintiff. The witness has further measured area between dotted line as well as plain line and stated the same to be 6 R. of land.

6] Thus, relying on the uncontested testimony of the plaintiff witness no.1 as well as witness no.2 i.e. an Expert, who has measured the land, which has gone uncontested and unchallenged by the defendants, the learned trial court had accepted the same and has decreed the suit vide judgment and decree dated 21.02.2015 by declaring that 6 R. area encroached upon by the defendants shall be handed over to the plaintiff on the northern side of Gat 246 shown as 1A.

7] The defendant no.2–Vishwanath Randhwane has proposed to file an Appeal along with application for condonation of delay before the District Judge-2, Kopargaon, which came to be registered as Civil MA No.53/2017. The said Misc. Application was filed praying to condone delay of 901 days in filing the Appeal against the judgment and decree dated 21.02.2015 passed by the 3rd Joint Civil Judge Junior Division, Kopargaon in Regular Civil Suit No.244/2011. The learned District Judge-2, Kopargaon, vide its judgment and order dated 10.10.2022, has rejected the said application holding that the applicant has failed to explain delay of 2 and ½ years and that there is no sufficient cause shown by the defendants in condoning the delay by exercising the powers under Section 5 of the Limitation Act, 1963. The applicant has thus approached this Court by filing the present Second Appeal, challenging the judgment and decree dated 10.10.2022 passed in Civil Misc. Application No.53/2017, refusing to condone delay of 901 days in filing the Appeal.

8] At the outset, the learned counsel Mr.Amol S. Gandhi for the appellant submits that though there are several substantial questions of law framed in the memo of Appeal, however, the following substantial questions of law appear to be involved in the present Second Appeal :

                   I] Whether the lower appellate court has committed gross illegality in not appreciating all the facts and circumstances giving rise to the dispute as well as the delay while refusing to condone the delay ?

                   II] That, when adjudication in relation to the valuable rights of the parties, in relation to immovable property is involved in the appeal filed by the Appellant, then whether the learned lower appellate Court has erred in rejecting the application for condonation of delay filed by the Appellant in view of the judgment of Supreme Court in N.Balakrishnan Vs. M. Krishnamurthi [1998] 8 SCC 123.

                   III] Perusal of judgment and decree of the trial Court would clearly establish that said judgment is passed without even considering the pleadings and reliefs prayed in the suit, so also in violation of statutory provisions. As such, the appellant has strong case on merits for success in the appeal then whether the lower appellate Court is justified in refusing to condone the delay, without considering the merits of the case and subsequent events?

9] The learned counsel for the appellant relied upon the judgment of the Bombay High Court, Bench at Aurangabad in the case of Agricultural Produce Market Committee Vs. Tanaji and others reported in 2022 DGLS (Bom.) 1702, on the point that while considering the request for condoning the delay, the reference to the disputed facts becomes inevitable. He further relied upon the judgment in the case of Rambhau Daulatrao Mule and others Vs. Balabhau Pandharinath Kachre and others reported in 2019 DGLS (Bom.) 1583 on the point that there was no joint measurement of both lands of the plaintiff as well as defendants and as such the conclusion drawn by the Surveyor of Map, cannot be said to be a proper conclusion.

10] On the other hand, the learned counsel for the respondent–original plaintiff Shri S.S.Tope has relied upon the judgment of the Hon’ble Apex Court in the case of Shivamma (Dead) by L.Rs. Vs. Karnataka Housing Board and others reported in 2025 LiveLaw (SC) 899 to buttress the point that litigants cannot be placed in situations of perpetual litigations, wherein the fruits of their decrees or favourable orders are frustrated at later stages. The Hon’ble Supreme Court has observed as under :

                   “We are at pains to reiterate this everlasting trends, and put all the High Courts to notice, not to reopen matters with inordinate delay, until sufficient cause exists.”

11] I have gone through the judgment dated 21.02.2015 decreeing the suit, the judgment dated 10.10.2022 dismissing the application on delay and the judgments relied upon by the appellant and the respondent.

12] The learned counsel for the appellant vehemently submits that there was a sufficient cause in filing the delay application as the plaintiff has misled the defendants by assuring to withdraw the suit firstly and after passing of the decree has further assured to withdraw the execution proceedings. Even assuming arguendo, such assurance was given by the plaintiff, however, the application for condonation of delay filed by the appellant before District Judge shows that the plaintiff has assured the defendants to first remove encroachment then only he would withdraw the said suit or execution proceedings.

13] Section 5 of the Limitation Act confers upon the Courts the discretionary power to admit any appeal or application if filed after the expiry of the prescribed period of limitation, provided the erring party is able to show to the court a sufficient cause for not filing the same within the stipulated period of limitation, and the Court is satisfied with sufficiency of such cause. It is only in cases where there is sufficient cause shown for the delay in filing the appeal or application by the defaulting party and if the courts are satisfied with such explanation and sufficiency of such cause that the delay can be condoned in exercise of powers under Section 5 of the Limitation Act.

14] The appellant–defendant no.2 has failed to contest the suit, did not file written statement, did not file evidence on affidavit, did not examine himself. It is observed by the trial Court that the appellant – defendant no.2 had initially appeared in the suit, however, failed to contest the suit by leading any evidence. The defendant no.1 also did not contest the suit and as such in absence of any evidence led by the defendants, the trial Court was left with no option but to accept the evidence of plaintiff and pass the decree.

15] The appellate Court has considered in detail the roznama of Regular Civil Suit No.244/2011 wherein there is an observation of the Advocate Mr. Katkar appearing on behalf of the defendant no.2 i.e. appellant herein that he has withdrawn his appearance from the suit as defendant no.2 i.e. appellant herein never attends the Court and he never meets him, nor attends his office and as such it was not possible for the Advocate Mr.Katkar to proceed with the suit. Advocate Mr.Katkar has also issue dnotice to the defendant no.2 i.e. appellant herein on 02.04.2013 by registered post. Even then the appellant did not appear in the suit. The First Appellate Court has therefore considered the same as negligence on the part of the defendant no.2 i.e. appellant herein to proceed with the suit.

16] The learned Appellate Court has further observed that son of the defendant no.2 has entered into the witness box on behalf of the defendant no.2 i.e. appellant herein. The son of defendant no.2 admitted that he is not aware about any talks of compromise. No dates or days in respect of alleged talks of compromise is stated by the witness i.e. son of the defendant no.2. The defendant no.2 himself has appeared in the Execution Proceeding No.30/2016 on 22.12.2016 and did not plead alleged cheating on assurance by plaintiff. The application for condonation of delay is filed only on 15.09.2017, after about 9 months of his appearance on 22.12.2016 in Execution Proceedings, which shows the conduct that he did not pursue the remedies diligently and that there was inordinate delay in filing the application, which is not sufficient cause to exercise discretion to condone delay of 901 days in filing the appeal.

17] The judgments, cited supra, relied upon by the learned counsel for the appellant, no doubt speaks of a reference to the disputed facts while considering the request for condoning delay. However, even going by the reference to the disputed facts, the application for condonation of delay itself shows that the plaintiff has assured to withdraw the suit and the execution proceedings only if the defendants removed the encroachment to the extent of 6 R. area from the plaintiff’s land. The further facts as deposed by the plaintiff witness no.1 as well as plaintiff and witness no.2, show that the land was measured by the Land Record office after issuing notice to the plaintiff, defendants and the adjacent land owners, who were present at the time of carrying out the measurement of the suit land. The suit land was measured and map was prepared showing extant of encroachment from dotted line to plain lines, which was about 6 R. area in the suit land. The said testimony of the plaintiff’s witness had gone unchallenged and as such the suit was rightly decreed by the trial Court relying upon the testimony of the plaintiff witness. The Hon’ble Supreme Court in the recent judgment in the case of Shivamma [Dead] by L.Rs., cited supra, was pleased to hold as under :

                   147. The expression “may be admitted” vests in the court a discretion, the exercise of which is pre-conditioned to the proof of a “sufficient cause” for the failure to file the appeal or application, as the case may be, within the prescribed period of limitation. It enables a court to either admit or reject any appeal or application, for being barred by limitation, even if “sufficient cause” is shown to its satisfaction. The idea behind vesting the courts with such discretion is to ensure that the power to condone any delay in the filing of an appeal or application, as the case may be, is exercised only to advance substantial justice, where no prejudice or injustice would be meted from such delay being condoned. Condonation of delay is not a matter of right but a discretion of the court.

                   167. Once, the material on record lend support to the view arrived at by the court below, the enquiry of the appellate court into the material on record ends. Thereafter, what remains to be seen is only the exercise of discretion by the court below, which warrants a careful and delicate approach from the appellate court. This is because acceptance of the explanation as a sufficient cause is the result of a positive exercise of discretion and normally the appellate court should not disturb such exercise of discretion, unless the exercise of discretion was on wholly waterable grounds or arbitrary or perverse.

                   262. …....We are at pains to reiterate this everlasting trend, and put all the High Courts to notice, not to reopen matters with inordinate delay, until sufficient cause exists, as by doing so the courts only add insult to the injury, more particularly in appeals under Section 100 of the CPC, wherein its jurisdiction is already limited to questions of law.

18] Perusal of the application for condonation of delay would show that except for the plea of assurance of the alleged assurance given by the plaintiff that he would withdraw the suit, there is no other explanation given by the appellant to condone the delay. The appellant – defendant has failed to show any sufficient reason to condone the delay and as such the Civil Misc. Application came to be rejected by the District Judge-2, Kopargaon in exercise of its discretionary powers.

19] After considering the judgment of the learned trial Court as well as the learned First Appellate Court, the present Second Appeal does not involve aforesaid substantial questions of law as submitted by the learned counsel for the appellant. There is no error or irregularity in the judgment passed by the learned District Judge. No other substantial questions of law arise for consideration in the present Second Appeal. The Second Appeal is, therefore, dismissed with cost.

20] In view of dismissal of Second Appeal, Civil Application No. 17416 of 2022 stands also disposed of.