- (1.) This appeal is a time barred appeal. There was 74 days delay in filing this appeal. Last day for filing the appeal was 29th June, 2015. The instant appeal was filed on 11th September, 2015. Reason for the delay has been explained by the appellant/applicant in this application for condonation of delay. It is stated therein that the appellant/applicant is aged about 74 years and he could not file the instant appeal before 11th September, 2015 due to his illness. According to him, he was advised by his doctor to take bed rest and as per the doctor's advice, he remained in bed rest for the period from 1st July, 2015 to 4th September, 2015. Immediately after recovery within a week thereafter, the instant appeal was filed. Medical certificate showing illness of the appellant has also been annexed to the application for condonation of delay. Considering the averment made in this application, we are of the view that the reason which prevented the appellant from filing this appeal within the period of limitation has been sufficiently explained by the appellant/applicant in this application for condonation of delay. Accordingly, delay in filing this appeal is condoned. Let the appeal now be registered.
(2.) The application for condonation of delay being CAN 9570 of 2015 is thus disposed of. Re: FAT 482 of 2015 This first appeal is directed against a final decree passed in the partition suit at the instance of the defendant/appellant. The plaintiffs/respondent nos. 1, 2 and 3 are represented by their learned senior counsel Mr. Chatterjee. Other respondents did not participate in the trial of the suit. We are informed that no share was declared in their favour even in the preliminary decree. We are further informed that no allotment was given to them even in the final decree. As such, on the prayer of the learned advocate appearing for the appellant, we dispense with the requirement of service of notice of appeal upon those respondents. When the application for stay filed in connection with the appeal was taken up by us, we were requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit by dispensing with the requirement of filing paper books in this appeal. As a matter of fact, the materials which are before us are sufficient to dispose of the appeal. As such, we have decided to dispose of the appeal itself on merit. Let us now consider the merit of the instant appeal in the facts of the instant case.
(3.) Since the parties failed to amicably partition the suit property according to their shares in terms of the preliminary decree, final decree proceeding was initiated at the instance of the plaintiffs/respondents. Commissioner was appointed. The learned Commissioner after holding the commission at the suit property submitted a report on 3rd December, 2012 indicating therein the allotments made by him in favour of the parties as per the shares of the parties declared in the preliminary decree. The defendant/appellant submitted a written objection against the Commissioner's report on 13th May, 2013. Several adjournments were taken by them, but ultimately they did not move their objection petition. 13th March, 2015 was the date fixed for hearing of the defendant's objection against the Commissioner's report. Even on that date, the defendant submitted an adjournment application. The adjournment application was rejected by the learned Trial Judge and immediately thereafter, the report was accepted by the learned Trial Judge and thus the final decree was passed in the said partition suit by making the Commissioner's report and the sketch map as part of the final decree.;