2005 (7) TMI 712 - HC - Indian Laws

Summary

Issues Involved:
1. Ownership of the disputed property.
2. Adverse possession claim by the defendants.
3. Dismissal of the original suit by the trial court.
4. Condonation of delay in filing the appeal.
5. Rejection of the application under Section 5 of the Limitation Act.
6. Merger of the trial court's decree with the appellate court's order.
7. Maintainability of the writ petition under Articles 226/227 of the Constitution of India.

Detailed Analysis:

1. Ownership of the Disputed Property:
The plaintiff claimed ownership of the disputed property based on a sale deed executed by Smt. Mariyam and Smt. Basheeran, who inherited the property and sold it to the plaintiffs on 18.3.1949. The defendants did not challenge the execution of this sale deed.

2. Adverse Possession Claim by the Defendants:
The father of the respondents, Hameed Shah, claimed that he had perfected his title by adverse possession. However, the trial court dismissed the original suit (O.S No. 108 of 1983) filed by the plaintiffs for injunction, ejectment, and damages.

3. Dismissal of the Original Suit by the Trial Court:
The trial court dismissed the original suit on 10.3.1999. The petitioners, being the legal heirs of the plaintiff, filed an appeal along with an application under Section 5 of the Limitation Act for condonation of delay.

4. Condonation of Delay in Filing the Appeal:
The petitioners explained the delay by stating that the certified copies of the judgment and decree were not handed over to their counsel in time. The appeal was filed on the first day after the summer vacation of the Civil Court. The District Judge dismissed the application under Section 5 of the Limitation Act, citing ignorance of law as no excuse.

5. Rejection of the Application under Section 5 of the Limitation Act:
The application under Section 5 was rejected without issuing any notice to the respondents or any rebuttal from them. The petitioners argued that the rejection was arbitrary and without proper judicial consideration.

6. Merger of the Trial Court's Decree with the Appellate Court's Order:
The court discussed the doctrine of merger, stating that a decree or order merges with the appellate court's order only when the case is decided on merit. Since the appeal was dismissed on the ground of limitation without a proper hearing, the trial court's decree did not merge with the appellate court's order.

7. Maintainability of the Writ Petition under Articles 226/227 of the Constitution of India:
The respondents argued that a second appeal should be filed under Section 100 of the Civil Procedure Code, not a writ petition. However, the court held that the writ petition was maintainable as the impugned order was passed in a Misc. Case No. 223 of 1999, against which no appeal lies under the Civil Procedure Code.

Conclusion:
The court found that the lower appellate court had taken a too technical view by rejecting the appeal on the ground of delay. The writ petition was allowed, quashing the impugned order dated 2.7.1999. The application under Section 5 of the Limitation Act was allowed, and the matter was remitted back to the lower appellate court for proper adjudication. The appeal should be registered and decided in accordance with the law. No order as to costs was made.