Shyam Gaigole & Anr. vs Sudhir Hutke & Ors.

The appellants have approached this Court, being aggrieved by the order dated 08.03.2017 passed by the learned District Judge-I, Achalpur in Miscellaneous Civil Application No.71/2015, whereby the application filed by the appellants under Section 5 of the Limitation Act for condonation of delay was rejected.

The appellants had filed an appeal under Section 96 of the Code of Civil Procedure before the learned District Judge, Achalpur, challenging the judgment and decree dated 29.07.2011 passed by the Joint Civil Judge, Junior Division, Daryapur in Regular Civil Suit No.63/2009. Since the appellants were not parties to R.C.S. No.63/2009, they also filed an application seeking permission to file the appeal, along with an application for condonation of delay. The Appellate Court rejected the application. Being aggrieved by the said order, the appellants have filed the present second appeal on the following substantial question of law:-

The appellants are the purchasers of the agricultural land from respondent Nos.2 to 4. Respondent Nos.2 to 4 are the legal heirs of Smita, daughter of Vinayakrao Hutke. She had received the property under the Will executed by Mankarnabai Ganpat Hutke, who died on 19.08.1992. Smita Hutke was married to respondent No.2. She died on 10.08.2002, leaving behind respondent Nos.2 to 4 as her legal heirs. After her death, the names of respondent Nos.2 to 4 were recorded in the revenue records as her legal heirs, and the said entry was made on 10.12.2008.

Respondent No.2 required money for the educational and other expenses of respondent Nos.3 and 4, who were minors at that time. Therefore, respondent No.2 filed an application before the learned District Judge, Achalpur under Section 8 of the Hindu Minority and Guardianship Act, 1956, seeking permission to sell the shares of his minor sons, respondent Nos.3 and 4. The learned District Judge granted permission and fixed the minimum market value of the land admeasuring 3 H 49 R at Rs.3,94,370/-. The learned District Judge also directed the Sub-Registrar, Daryapur to conduct an auction of the said property.

Pursuant to the said order, the Sub-Registrar, Daryapur conducted an auction of the agricultural land admeasuring 3 H 49 R from Gat No.1141. Bids were invited from interested persons through sealed offers by publishing notices in two local newspapers dated 03.02.2010 and 06.02.2010. The appellants submitted their offer to purchase the suit property for Rs.7,50,000/-. As the offer made by the appellants was the highest, it was accepted by the Sub-Registrar, Daryapur.

Pursuant to the orders passed by the competent authority, respondent Nos.2 to 4 executed registered sale deeds in favour of the appellants. An area admeasuring 1 H 75 R out of 3 H 49 R was sold to appellant No.1 by sale deed No.466/2010 dated 12.03.2010, and the remaining area admeasuring 1 H 74 R was sold to appellant No.2 by sale deed No.467/2010 dated 12.03.2010. Thereafter, the names of the appellants were recorded in the revenue records, and they are in cultivating possession of the suit land.

On 28.02.2012, respondent No.1 filed an appeal before the Sub-Divisional Officer, Daryapur, challenging the mutation entries relating to the suit land admeasuring 3 H 49 R and the remaining land admeasuring 4 H 10 R. The appellants were impleaded as respondent Nos.6 and 7 in the said appeal, which was registered as RTS-64/WadnerGangai/25/2011-12.

After receiving notice, the appellants came to know that respondent Nos.2 to 4 had filed a civil suit against respondent No.1 seeking declaration and permanent injunction before the Civil Judge, Junior Division, Daryapur, being R.C.S. No.63/2009. The said suit was dismissed by judgment and decree dated 29.07.2011.

While deciding the suit, the learned Civil Judge also considered the issue regarding the ownership of late Smita Hutke and held that respondent Nos.2 to 4, who were the plaintiffs in the said suit, had failed to prove the ownership of Smita Hutke in view of the Will dated 11.04.1988 executed by deceased Mankarnabai.

When respondent Nos.2 to 4 obtained the order dated 16.11.2009 from the learned District Judge-I, Achalpur under Section 8 of the Hindu Minority and Guardianship Act, 1956, R.C.S. No.63/2009 was already pending before the Civil Judge, Junior Division, Daryapur. However, respondent Nos.2 to 4 did not disclose the pendency of the said suit. Even at the time of execution and registration of the sale deeds on 12.03.2010, respondent Nos.2 to 4 did not disclose the pendency of R.C.S. No.63/2009. Respondent No.1 also did not raise any objection, though public notices regarding the auction of the suit land had been issued.

After receiving notice in the appeal before the Sub-Divisional Officer, the appellants filed their reply and stated that they had purchased the suit property in an auction conducted pursuant to the order of the Court and that the sale deeds in their favour were duly registered. On 22.04.2013, the Sub-Divisional Officer, Daryapur allowed the appeal filed by respondent No.1 and cancelled the mutation entries in the names of the appellants.

Aggrieved by the order dated 22.04.2013, the appellants filed an appeal before the learned Collector, Amravati on 10.06.2013, being Appeal No.RTS-64/Wadner Gagai-107/2012-13. The learned Collector, by order dated 20.08.2014, dismissed the appeal. The appellants thereafter filed a revision against the orders dated 20.08.2014 and 22.04.2013. The revision was dismissed on 15.07.2015.

The appellants contend that they were victims of fraud committed by the respondents and that they were bona fide pursuing the matter before the revenue authorities. Since the original order was passed by the Civil Court, the appellants believed that the proper remedy was to challenge the said judgment and decree before the Appellate Court under the Code of Civil Procedure.

Accordingly, on 18.08.2015, the appellants filed an appeal under Section 96 of the Code of Civil Procedure before the Lower Appellate Court, challenging the judgment and decree dated 29.07.2011 passed by the Joint Civil Judge, Junior Division, Daryapur in R.C.S. No.63/2009. Since the appellants were not parties to the said suit, they also filed an application seeking permission to file the appeal along with an application for condonation of delay. The Lower Appellate Court rejected the applications. Hence, the appellants have filed the present second appeal.

The respondents appeared and opposed the application filed by the appellants for condonation of delay. They contended that the appellants were aware of the judgment and that the reasons given by them for the delay were not correct. According to the respondents, the appellants were responsible for the delay and had not acted with due diligence. The respondents relied upon the judgment in Pundlik Jalam Patil (Dead) by L.Rs. v. Executive Engineer, Jalgaon Medium Project & Anr., (2008) 17 SCC 448. This decision underscores that the Court is required to examine the conduct of the party seeking condonation and that the discretionary jurisdiction under Section 5 cannot be exercised to reward prolonged inaction. Thus, where knowledge of the proceedings or decree is established, the applicant must satisfactorily explain the subsequent period during which no effective legal remedy was pursued. It is also observed by the Hon’ble Apex Court in State of Madhya Pradesh v. Ramkumar Choudhary, 2024 SCC OnLine SC 3612, that the application must explain the circumstances which actually prevented timely institution of the proceeding. The judgment in Union of India & Anr. v. Jahangir Byramji Jeejeebhoy (D) through LRs, 2024 SCC OnLine SC 489 reiterates that limitation founded upon policy and that prolonged inaction may result into irrevocable rights accruing to the opposite party.

The respondents further contended that the appellants were aware of the pendency of the civil suit before the Civil Judge, Junior Division, Daryapur. Therefore, according to them, the contention of the appellants that they were unaware of the pendency of the suit and the judgment passed therein was incorrect. Instead of challenging the judgment within the prescribed period, the appellants pursued proceedings before the revenue authorities.

It was further contended that the revenue authorities are not Courts and, therefore, the benefit of Section 14 of the Limitation Act would not be available to the appellants, as the proceedings before the revenue authorities cannot be treated as proceedings before a Court which lacked jurisdiction. Section 14 emphasises the requirement of ‘good faith’ and ‘due diligence’ in prosecuting the earlier proceeding. The respondents relied upon the judgments in Deena (Dead) through LRs v. Bharat Singh (Dead) through LRs & Ors., (2002) 6 SCC 336, Rabindra Nath Samuel Dawson v. Sivakasi & Ors., (1973) 3 SCC 381 and Chhabubhai Balkrishna Sutar & Anr. v. Panchan Ladha Savala, deceased through Kuvarbai P. Savala & Ors., 2010 (5) Mh.L.J. 885.

It is submitted that the appellants were aware of the pendency of the civil suit and, despite this, they did not take any steps diligently within the prescribed period. According to the respondents, the reasons given by the appellants were not satisfactory and, therefore, the Appellate Court had rightly rejected the application for condonation of delay. It was further submitted that no substantial question of law arises in the present appeal and, therefore, the appeal be dismissed.

Heard the learned Counsel for the parties and perused the record and the judgments relied upon by them.

It is not disputed that the appellants were not parties to the civil suit pending before the Civil Judge, Junior Division, Daryapur. Respondent Nos.2 to 4 had also not disclosed the pendency of the said suit during the proceedings under Section 8 of the Hindu Minority and Guardianship Act, 1956.

The appellants purchased the property pursuant to the proclamation issued by the Court and, therefore, they had reason to believe that the transaction was valid. The sale deeds were executed in their favour and their names were thereafter entered in the revenue records. Subsequently, when they received notice regarding the proposed change in the mutation entries, they approached the revenue authorities for protection of their rights. They also filed an appeal and a revision before the revenue authorities. The observations made by the Hon’ble Apex Court in case of N. Mohan v. R. Madhu, (2020) 20 SCC 353, are as follows:-

It is the case of respondents that in 7/12 extract the pendency of suit was mentioned and, therefore, the appellants were aware about the litigation and they were not vigilant.

The appellants have placed reliance on judgment in Robin Thapa v. Rohit Dora, (2019) 7 SCC 359, wherein the Supreme Court dealt with a dispute arising out of a specific performance decree. The appellants sought to challenge the proceedings on the ground that he had not acquired knowledge of the decree at the stage claimed by the respondents. The record, however, showed that the appellants had received notice of the execution proceedings on an earlier date, which weakened his assertion that he came to know of the decree only later. Nevertheless, the Supreme Court considered that an opportunity should be provided in the interests of justice, particularly in the context of the discretionary relief of specific performance, subject to appropriate conditions.

The appellants were under a bona fide belief that they were bona fide purchasers and that respondent Nos.2 to 4 had valid title to the property. They were not aware of the dispute regarding the ownership of the property or the findings recorded in the civil suit.

The appellants filed the application for condonation of delay along with an application seeking permission to file the appeal. Considering the facts and circumstances of the case, an opportunity ought to be given to the appellants to contest the matter. The appellants had purchased the property pursuant to the Court proceedings and were bona fide purchasers. Respondent Nos.2 to 4 had not disclosed the pendency of the civil suit relating to the property.

The findings regarding the ownership of respondent Nos.2 to 4 were not within the knowledge of the appellants. Therefore, in the interest of justice, the appellants deserve an opportunity to contest the judgment and decree on merits.

For the aforesaid reasons, I pass the following order:-