The court upheld the dismissal of an appeal for delay due to insufficient cause, confirming that prior court appearances undermine claims of illness preventing timely action.

JUDGMENT :

SASHIKANTA MISHRA, J.

This is an appeal by Defendant No.1 of C.S. No. 486 of 2014 in the Court of learned Additional Senior Civil Judge, Baripada, which was preliminarily decreed by the trial court. Said judgement and decree being challenged by Defendant No.1 before the 1st Appellate Court, the appeal was dismissed on the ground of limitation.

2. For convenience, the parties are described as per their respective status before the trial Court.

3. The plaintiffs filed the suit for partition of schedule-B and B-1 properties as per the plaint schedule. Their case, briefly stated, is that suit schedule ‘B’ land stands recorded in the name of the Defendant No.1, Plaintiff No.2 and Defendant No.2, who are sons of Sk. Meheboob. Schedule B-1 land stands recorded in the name of the Defendant No.1, Plaintiff No.2, Defendant No.2, Plaintiff No.3, Plaintiff No.4 and the Plaintiff No.1. The plaintiffs and Defendant Nos. 1 and 2 are the members of the family of Sk. Meheboob, who is their common ancestor. Sk. Mehboob died in the year 1981, leaving behind his wife, i.e., Plaintiff No.1, five sons, i.e., Plaintiff Nos. 2 to 4 and Defendant Nos. 1 and 2 and four daughters, i.e. Plaintiff Nos. 5 to 8. In the settlement operation in the year, 1984, the names of the daughters of Sk. Meheboob were not recorded in Khata No.102. Similarly, in Hal settlement operation in the year 1986, the names of Plaintiff Nos. 1, 3 and 4 and Plaintiff Nos. 5 to 8 were not recorded in Khata No.230. Defendant No.1 was looking after the matter of settlement and deliberately avoided recording of the names of his sisters in the ROR. After death of Sk. Mehebood, due to financial crisis, the family members transferred some land to different persons. The Plaintiff No.1 along with Plaintiff Nos. 2 to 4 and Defendant Nos.1 and 2 sold Ac. 0.05 decimals of land to Defendant No.3. The Plaintiff Nos. 1 to 4 and Defendant No.2 sold out some lands to Defendant No.4 to 6. Defendant No.1 sold some land to Defendant Nos. 7 and 8 behind the back of the Plaintiffs, which are void being without consent of the co-sharers. Having come to know about the same, Plaintiff No.1 called her sons and daughters and suggested for adjustment of the lands sold from their respective shares but Defendant No.1 refused to accede to such request. Hence, the suit for partition.

4. Upon receipt of notice, Defendant Nos. 1 and 2 appeared but did not file any written statement. Defendant Nos. 5 and 6 were set ex-parte. Defendant No.7 appeared and filed written statement but was subsequently set ex parte. Defendant Nos. 3 and 4 were also set ex parte. Defendant No. 8 filed his written statement challenging the plaint averments by stating that the sale made by Defendant No. 1 to Defendant Nos. 7 and 8 is bonafide and that he is in peaceful possession over his purchased land. Subsequently, he has also transferred some land in favour of Dhabaleswar Sahu and others and delivered possession. Basing on the rival pleadings, the trial court framed the following issues for determination:-

i) Whether the suit is maintainable in the eye of law?

ii) Whether the plaintiffs have got any cause of action to file the suit?

iii) Whether the suit is filed within the period of limitation?

iv) Whether the suit is bad for non-joinder of necessary parties?

v) Whether the suit property is liable for partition and if so, what is the quantum of share of the respect