Pratap Krishna Lohra, J. - (1.) THE appellant -defendant No. 1 has laid this first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short, 'CPC') challenging the impugned judgment and preliminary decree dated 17th October 2012 passed by learned Additional District Judge (Fast Track) No. 3, Jodhpur Metropolitan in a suit for partition and permanent injunction. By the impugned judgment and preliminary decree, learned trial Court has declared respondent No1. -plaintiff entitled for one -third share in the suit property. A decree for permanent injunction is also passed against the defendants not to transfer, alienate or alter the share of the plaintiff in the property.
(2.) THE appeal is filed after delay of 791 days, therefore, appellant has also moved an application under Section 5 of the Limitation Act for condonation of delay. Averments contained in the application reads as under: - 1. That the applicant has filed a civil first appeal before this Hon'ble Court on 26.03.2015 against the Preliminary Decree dated 17.10.2012 passed by ADJ No. 3, Jodhpur in Civil Original Suit No. 140/08 (98/07) Surendra Kumar V/s. Kalu Ram & Ors. 2. That the applicant and non -applicants are real brothers and residing in separate portions of the disputed property since the lifetime of their father having separate residence and mess. That after the preliminary decree passed by the trial court, the applicant and non -applicants who are real brothers get together and decided that court has declared that parties are having 1/3 share each in the disputed property so they are satisfied and the non -applicant No. 1 Surendra Kumar will not press for passing of final decree.
(3.) THAT after more than two years passed, the non -applicant No. 1 applied for passing of final decree and a notice to that effect has been received by the applicant on 09.03.2015.;