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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

SECOND APPEAL

N O . 101

OF 20

22

1)

Swapnil s/o Devanand Meshram,

Aged about 35 yrs, Occ-Private.

2)

Shalima w/o Swapnil Mehram

Aged about-35 yrs, Occ-Housewife,

Both appellants are R/o-Bhagwan Nagar,

Near Kalptaru Budhavihar, Kukde Layout,

Nagpur.

... APPELLANTS

...VERSUS…

1)

Sunil Dharmdas Patil (Dead)

Through Legal Heirs

1-A) Bhumika W/o Sunil Patil

Aged about -49 years

1-B) Ankit S/o Sunil Patil (Son)

Aged about 29 yrs, Occ-Private work,

1-C) Amit S/o Sunil Patil (Son)

Aged about -29 yrs, Occ-Private work,

All R/o-Plot No.1, Jai Bhim Nagar,

Rameshwari Road, Nagpur.

2)

Dnyaneshwar Marotrao Karmarkar

(Original Defendant.3)

Aged about-69 yrs, Occ-Private work,

R/o Plot No.90, Fhulmati Layout,

Jaywanti Nagar, Nagpur.

...RESPONDENT

S

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Shri A.H. Matetwar, Advocate for the appellants

Shri U.K. Bisen, Advocate for the respondent Nos.1-A to 1-C

None for respondent No.2

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CORAM : SMT. M.S. JAWALKAR, J

.

DATE OF RESERVING THE JUDGMENT :

20/06/2022

DATE OF PRONOUNCING THE JUDGMENT : 06/07/2022

JUDGMENT

Heard. Heard finally by consent of the learned Counsel

for appellant and respondent Nos. 1-A to 1-C at the stage of

admission.

2.

Present appeal has been filed by the appellant being

aggrieved by the order dated 23/10/2021 passed by the learned

District Judge-10, Nagpur in Misc. Civil Application No.323/2019 in

First Appeal arising out of Judgment and Decree passed by the

learned 10^th Joint Civil Judge Senior Division, Nagpur vide Special

Civil Suit No.366/2012, thereby rejecting the application for

condonation of delay of 685 days for filing the First Appeal.

3.

It is the case of the appellants that the appellants are

the original defendant Nos.1 and 2 in Special Civil Suit

No.366/2012 and the respondent No.1(A to C) are the legal heirs of

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the plaintiff. The respondent No.1 had filed the suit for possession,

declaration, damages and mandatory injunction on the basis of

unregistered sale deed against the present appellants which was

decreed by the learned Lower Court on 02/05/2017 without giving

an opportunity to the present appellants.

4.

It is submitted by the Counsel for the appellants that

after the receipt of the summons of the civil suit the appellants had

appeared and filed their written statement by engaging advocate for

defending their side. It is specifically stated that the

appellants/defendant Nos.1 and 2 had entered into an agreement

to sale with the defendant No.3 on 16/04/2010 in respect of the

suit property. In pursuance of the agreement to sale, the appellants

were put in possession of the suit property. On 12/06/2012, the

respondent No.1 had filed a civil suit for possession, declaration,

damages and mandatory injunction on the basis of unregistered

sale-deed. But the learned Trial Court had wrongly decreed the suit

and declared the ownership in favour of the respondent/plaintiff

merely on the basis of unregistered sale-deed.

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5.

It is further contention of the appellant, after filing of

the written statement the appellants were in continuous touch with

their counsel, however the Counsel engaged by the appellants had

informed the appellants that since it is a civil suit, it is not necessary

for the parties to remain present and also assured that when their

appearance will be required he will inform them and there is no

need to appear on each and every date, believing on the statement

of the Counsel, the appellants did not appear in the said civil suit

after filing of the written statement. Consequently, the suit decided

and came to be decreed on 02/05/2017 by the learned Trial Court.

6.

Ther