Arup Kumar Goswami, J.

1. Heard Mr. H. Das, learned counsel for the appellants. None appears for the respondents though the names of the counsel are reflected in the cause-list.

2. The Second Appeal is directed against an order dated 29.08.2008 passed by the learned Civil Judge, Goalpara dismissing the appeal filed by the appellants as time-barred, consequent upon rejection of an application filed by the appellants for condonation of delay in preferring the appeal on the ground that the appellants had failed to show sufficient cause for condoning the delay as well as that there appears to be deliberate inaction and lack of bona fide on the part of the appellants in preferring the appeal.

3. The appeal was admitted to be heard by an order dated 20.04.2009 on the following substantial questions of law:-

"(1) Whether the learned Appellate Court was right in holding that the explanation as averred in the petition under Section 5 of the Limitation Act, 1963 for condonation of delay of 15 days delay could neither be treated as adequate nor sufficient for condonation of delay and rejecting the said application and further dismissing the Title Appeal No. 13/2007 as time barred?

(2) Whether, the learned Appellate Court was right in holding that the explanation as averred in the petition for condonation of delay it appeared that there was deliberate inaction and lack of bona fide on the part of the appellant in preferring the Appeal and as such appellants have failed to show "Sufficient Cause" for condoning the delay in preferring the Appeal and rejecting the said petition and dismissing the Title Appeal No. 13/2007?"

4. The present appellants were the defendants in the suit.

5. The case of the plaintiffs was that both the plaintiffs and the defendants were descendants of late Maishatulla. Maishatulla, along with his brother, jointly owned and possessed two plots of land and both the brothers, during their life time, mutually partitioned the said two plots of land. Late Maishatulla took the land located at Bousiapara and the brother took the land at Ambari and after their death, their legal representatives were in possession of the respective plots of land. Maishatulla left behind 3 sons, namely, (1) Noor Mohammad, (2) Azizul Hoque and (3) Noor Hussain who used to live jointly in the Schedule A land at Bousiapara and they also purchased Schedule B land, each having 1/3rd share in the properties. Noor Hussain, one of the brothers, died leaving behind the plaintiff Nos. 2 to 8 as his heirs and Azizul Hoque died leaving behind the defendants as his heirs. Both the plaintiffs and defendants have their dwelling houses in Schedule A suit land and they were possessing the properties having common right, title and interest. The defendants started construction of a sanitary latrine in the Schedule A land for their use without the consent and permission of the plaintiffs. Plaintiffs requested the defendants to make partition of the suit property first and not to construct latrine and raise any permanent structure on the suit land. The same having not been acceded to, the suit was filed with the following prayers:-

"(i) For a preliminary decree for partition of 1/3rd (one third) share of plaintiff No. 1, 1/3rd share of plaintiff No. 2 to 8 and 1/3rd share of defendants as per Muslim law of inheritance.

(ii) For effecting partition in terms of the preliminary decree by commission to be appointed by the court.

(iii) For final decree embodying the commission's report.

(iv) For cost of the suit and any relief which this court may kind fit and proper."

6. A written statement was filed by the defendants contesting the averments in the plaint.

7. Though the pleaded version in the plaint is discussed in some detail to have an idea about the controversy, bearing in mind the scope of the present appeal, it is considered not necessary to deal with the stand of the defendants in the written statement in detail.

8. The suit was registered as Title Suit No. 48/1996