S.B. Sanyal, J. - (1.) This second appeal is by the plaintiffs. It arises out of a suit for declaration of title to 8 kathas 7 dhurs of land with a Khapara -posh house in Mohalla Bari -Ashiquepur, P.S. Jamalpur, District Monghyr, comprising holding No. 53. The plaintiff -appellants are the heirs and successor of the original plaintiff Most. Sanfo Devi. The additional prayer in the suit was for a declaration that the title acquired by the plaintiff by virtue of deed of gift dated 2.12.1969 (Ext. 1) was in no way affected by the deed of cancellation dated 2.3.1970 (Ext. 4) and the sale deed dated 3.3.1970 executed by defendant 2nd party (Ext. R)' in favour of defendant Ist party is void and inoperative. The suit has been instituted with the aforesaid prayer on 11.6.1979. For the purpose of determination of the question raised in this second appeal, it is not necessary to state the facts in detail. Suffice it to say that one Nathoo Tanti executed a registered deed of gift (Ext. 1) on 2.12.1969 in favour of Most. Sanfo Devi in consideration of services rendered by her. She accepted the gift by putting her thumb impression in the deed itself. On 2.3.1970, Nathoo Tanti vide Ext. 4 cancelled the deed of gift and on the next day 3.3.1970 (Ext. R) Nathoo Tanti executed a sale deed in favour of the respondents. At the time of admission of the appeal, the substantial question of law framed was whether the lower appellate court having held that the deed of gift in favour of the plaintiffs -appellants being otherwise good did it err in law in holding that possession must also have been proved by the appellants pursuant to the said gift in order to succeed in the suit
(2.) The Court of appeal below found that the deed of gift was not obtained by practising fraud upon Nathoo Tanti. It further found that the deed of cancellation of the gift was not valid. It further found that the deed of gift was accepted by Sanfo Devi and in token of the same put her thumb mark thereupon. The appellant court, however, was of the view that mere acceptance by the donee will not make the gift effective and operative as the plaintiff did not give any possession of the gifted property and, therefore, the gift could not be said to have been acted upon, as such Sanfo Devi acquired no title to the disputed property by virtue of the execution of the registered deed of gift by Nathoo Tanti. The appellate court by the impugned judgment further held that the memo of appeal was barred by eight days' limitation and the cause for delay in filing the appeal is neither satisfactory nor sufficient.
(3.) I will take up the question of limitation first, Mr. Sudhir Chandra Ghose, learned counsel appearing for the appellants, contended that the learned District Judge, by his order dated 26.5.1977, condoned the delay in filing the appeal and after having so condoned admitted the same. Notices for admission of the appeal were issued and the matter was ordered to be put up on 4.6.1977 and the defendants appeared on 5.10.77. The condonation petition explaining the delay of eight days was supported by an affidavit. The facts stated in the affidavit was at no stage controverted during the entire career of the case. It was, therefore, submitted that the Additional District Judge erred in law in recalling the order of condonation passed on 26.5.1977 particularly in view of no evidence adduced before him controverting the explanation furnished in the condonation petition supported by an affidavit which found favour with the District Judge. Mr. Sheo Kumar Singh, learned counsel appearing for the respondents, on the other hand contended that the respondents are entitled in law to re -open and assail an ex -parte order of condonation passed and the Court was wholly justified to consider the matter on appearance of the respondents. He relied upon a Privy Council decision in support of his aforesaid stand. He further contended that the lower appellate court having reconsidered the matter and having exercised its judicial discretion, this Court should refrain from taking a contrary view and/or interfering with the said order while exercising jurisdiction under Sec. 100 of the Code of Civil Procedure (1969 B.L.J.R. 890 -T. Koeri v/s. J.;