G.R.MOOLCHANDANI,J. - (1.) The instant second appeal is filed by the appellant defendant against the judgment dated 18/04/2007 passed by learned Additional District Judge No.2, Udaipur in Civil Appeal No.9/2002 and judgment dated 09.10.2001 passed by Civil Judge (Junior Division), City North, Udaipur in Civil Original Case No.254/96. The trial Court has decreed the suit of the plaintiff-respondent Nand Lal by granting permanent injunction and learned First Appellate Court has dismissed the appeal of defendant/appellant Urban Improvement Trust on ground of delay of forty eight days without deciding the first appeal on merit.
(2.) Heard the submissions of both the sides, learned counsel for the appellant has submitted that the first appellate Court has committed grave illegality, while dismissing the first appeal sheer on the ground of delay of forty eight days, the appeal was of Urban Improvement Trust, a Local Body. Relying upon the judgment in case of State of Nagaland v. Lipok Ao and Others, RLW 2005 (3) 357 , learned counsel has submitted that delay of forty eight days was not willful, which was explained and it was expected to be condoned by first appellate Court, but ignoring the mandate of law without any cogent reason, learned trial Court has passed wrong judgment by rejecting the appeal on the ground of delay, which is not tenable under the law. Public land of crores of rupees of the UIT is involved, which has wrongly been trespassed and construction is being undertaken over the land illegally. Referring extracts of evidence, it has been further argued that the respondent-plaintiff has himself accepted that he was allotted plot No.38B having a dimension of 1250 sq. feet but apparently grabbing the another land having more than double area construction is being illegally undertaken on another plot number 47-B. It has further been contended that learned trial Court has exceeded its jurisdiction by granting relief without any prayer and no such order could be passed for regularization of the land, on which the plaintiff-respondent was a trespasser and finding of learned trial Court is apparently bad, notwithstanding, the first appellate Court did not consider it and dismissed the first appeal on technical ground of delay of forty eight days, whereas delay caused was explained and was liable to be condoned, since government cannot be treated on the same footing of an individual and it has been contended to allow the appeal. Learned counsel for the respondent, while taking support of Pundlik Jalam Patil (D) by LRs v. Exe. Eng. Jalgaon Medium Project & Anr, 2008 (17) SCC 448 , P.K. Ramachandran v. State of Kerala & Anr., AIR 1998 Supreme Court 2276 , Cheelaram v. Manak, AIR 1997 Rajasthan 284 , Shankarlal v. Mangilal, 2006(3) DNJ (Raj.) 1347) has contended that there is no illegality in the judgment impugned, both individual and government are to be treated equally on the point of delay, wilful delay can never be condoned and it is an admitted position that the plaintiff-respondent was given possession over 47-B and bonafidely permission was sought by him for construction of the premises, which was wilfully kept prolonged, so under impression of implied sanction, bonafide construction was undertaken, respondent is prepared to pay the dues as ordered by the learned trial Court for the regularisation of the land found in excess, the finding of learned trial Court as well as of first appellate Court are not bad at all, so appeal be dismissed.
(3.) Perused the record and examined the impugned judgment's.;