- (1.) THIS is an appeal against an appellate decree of the Additional Commissioner, Jaipur, dated 29/1/1954 reversing the decree of the trial court in a suit for recovery of possession over the land in dispute filed by the respondent against the appellants.
(2.) A preliminary objection has been raised as to the maintainability of this appeal on the question of limitation and as the same is bound to succeed, it is unnecessary to go into the merits of the case. The learned Additional Commissioner reversed the decree of the trial court and decreed the suit on 29/1/1954. The appellants applied for a copy of the judgment of the lower appellate court on 9/3/1954, and the same was received by their counsel on 30/4/1954. A copy of the decree was applied for on 17.8.1954 and was obtained by the appellant Changi himself on 18/8/1954. The appeal was presented in the Board by Sheo Narain on 18.8.1954 with a copy of judgment of the lower appellate court along with an application for being given the benefit of sec. 5 of the Indian Limitation Act. The certified copy of the decree which was obtained on 18/8/1954 has not been produced as yet. To ascertain as to whether any sufficient grounds existed or not for not filing the appeal within the limitation period, two witnesses were examined on behalf of the appellants. We have carefully perused their evidence and have no hesitation in observing that no sufficient cause has been shown to exist in the case. Shri Madanlal who was engaged by the appellants in the lower court admits his signatures along with the date on the reverse of the application for grant of copy of the judgment. 30.4.1954 is written in his own hand as being the date on which the copy was received. It was stated by him that he signed this application on the assurance of a clerk working in the Additional Commissioner's office that the copy would reach him in due course and that he had not actually received the copy while signing it. He was asked to produce the cleark concerned. At one time the appellants signified their willingness to produce him, but subsequently they staled their inability to do the same with the result that the allegations made by Shri Madanlal do not stand proved in the case. The other witness Ram Chandra has made suggestions which are equally inherently improper. He has stated without the help of the register that he maintains and which he did not deliberately bring with him while given the evidence, that the copy was handed over to him by Shri Madanlal and after that he proceeded to Mount Abu and it was result of his absence that the appellants could not get the copy before 1st August, 1954. He has himself admitted that he came down to Alwar during this period a number of times, that he did not remember that dates of his going to or coming back from Mount Abu. He questioned as to why he did not send the copy of the appellants by post and the answer that he has given is sufficient to reduce his credibility to naught. His explanation is that postal charges were not given to him by the appellants He should have sent the copy by post and could have recovered these charges subsequently. When he accepted the responsibility of handing over the copy to the appellants, he as a Licensed Petitioner should have arranged to despatch the copy at the earliest moment considering the question of limitation. All the evidence which has been led by the appellants does not provide any cogent or convincing reason. In fact no sensible explanation has been offered as to why the appeal could not be preferred shortly after 30.4.1954 and more than 3 months were allowed to pass by, before the presentation of the appeal. The appellants, therefore, have no case for being given the benefit of sec. 5 of the Limitation Act. We have mentioned this as evidence was led by the appellants on the point. To decide the point at issue, however, it is not necessary to go into this evidence at all for the obvious reason that no appeal was filed within the limitation. It was incumbent noon the appellants to attach a certified copy of the decree appealed against with the memo-randum of appeal This copy was obtained by them on 18.8.1954 and has not been produced even upto the time of writing the judgment. The learned counsel for the appellant has stated that he was under the impression that the occasion for its production would arise after the Question of limitation was decided by the Board. Much need not be said on the point. Legally speaking there could be no proper presentation of the appeal unless the memorandum is accompanied by a certified copy of the decree appealed against. The appeal is, therefore, beyond limitation and is hereby reject.;