Dundappa Veerappa Tavagad and Others vs Tippanna Kenchappa Gangannavar and Others

S.N. Satyanarayana, J.—Plaintiff in O.S. No. 86/1996 on the file of the Civil Judge (Jr.Dn.) Bailhongal has come up in this second appeal challenging the concurrent finding of both the Courts below in dismissing his suit filed for specific performance.

This appeal is filed on 22.09.2008 challenging the concurrent finding rendered by the lower appellate Court in R.A. No. 12/2001 by its judgment dated 30.01.2006. This appeal is filed with a delay of 876 days. Hence, application in I.A. No. 1/2008 is filed seeking condonation of the same. In the affidavit it is stated that the appellant herein who is plaintiff in the original suit did not receive any communication from his counsel regarding passing of the judgment dated 30.01.2006 and it is only in the month of September 2007, he was informed by his counsel that regular appeal filed by him in R.A. No. 12/2001 is dismissed. It is stated that, thereafter he requested his counsel to apply for certified copy of the judgment passed in R.A. No. 12/2001 and subsequently, this appeal is filed after he was able to arrange for court fee and other things. It is further stated in the affidavit that, when he wanted to file an appeal in the year 2007, he was advised to wait till the circuit Bench in Dharwad is established and thereafter he can file the appeal in Dharwad Bench by engaging service of local advocate. In the light of the above, it is stated that the appeal is filed belatedly.

On going through the entire records, it is clearly seen that the appeal in R.A. No. 12/2001 is dismissed by judgment and decree dated 30.01.2006. Subsequently, the decree copy is applied on 08.08.2008 and certified copy is secured on 12.08.2008 and thereafter the present appeal is filed on 22.09.2008. On going through the material available on record, it does not infuse any confidence in the mind of the Court regarding the explanation provided for filing the appeal belatedly, i.e., with a delay of 876 days, which is not properly explained.

However, considering the fact that the plaintiff has come up in this second appeal contending that his valuable right to seek specific performance is denied without valid and sustainable reasons, the merits of the case is also looked into. On going through the same, it is seen that the plaintiff in the original suit who is the brother of the original owner of the land bearing R.S. No. 212 of Pattihal (KS) village is said to have initially staked claim to an extent of 3 acres 18 guntas as tenant and subsequently it is stated that he entered into an agreement on 09.12.1991 agreeing to purchase an extent of 1 acre 18 guntas, out of 3 acres 18 guntas in the aforesaid survey number for valuable consideration of Rs. 10,000/- from the defendant who is said to be the purchaser of the land from the sister of the plaintiff. After having parted with major portion of the sale consideration, he was put in possession in the year 1993 under Ex. P1 and subsequently, it is stated that suit is filed by him for specific performance in the year 1996.

In the original suit issues were framed with reference to the right of the plaintiff to seek specific performance under agreement dated 09.12.1991 and subsequent agreements are not accepted by the Court and that his contention that he was tenant of the said property as could be seen from Ex. P7-RTC is also disbelieved in view of the fact that the recitals in the agreement would indicate that, he was put in possession of the property by the vendor subsequent to 1991, which contradict his claim of alleged tenancy rights coupled with possession to that of his right to seek specific performance of the agreement dated 09.12.1991, wherein he tried to demonstrate that he was put in possession of the property under an agreement of sale. With these contradictions in the pleadings, the trial Court did not accept his alleged possession and cultivation of the suit schedule land and also disbelieved the averments in the agreement of sale resulting in his suit for specific performance being dismissed by judgment and decree dated 29.12.2001, which was confirmed by the lower appellate Court in R.A. No. 12/2001. With this it is clearly seen that this second appeal is filed against the concurrent finding of both the Courts below in dismissing the suit of the plaintiff for the relief of specific performance.

It is further seen that the plaintiff having lost his attempt to seek specific performance in both the Courts below was not diligent in pursuing this second appeal within time and he has taken 876 days in filing the present appeal. The reasons given in the application filed in I.A. No. 1/2008 also does not stand to reason inasmuch as no acceptable reasons are provided for condonation of inordinate delay of 876 days. On the contrary, the reasons stated in the affidavit are contradictory to each other and they appear to create more confusion than support his pleading. In that view of the matter, this Court find neither the appellant-plaintiff in the original suit is able to satisfactorily explain the inordinate delay of 876 days in filing the appeal nor to demonstrate that he has a good case on merits to seek the relief of specific performance. In that view of the matter, this Court find no justifiable grounds are made to condone the inordinate delay of 876 days in filing the appeal. Hence, application filed in I.A. No. 1/2008 is dismissed and consequently, the appeal also dismissed.