Gross delay in filing an appeal is not condonable where trial participation is established by court records.

The appellant filed a suit in 1965 under Section 88 of the Rajasthan Tenancy Act, 1955, seeking a declaration of 'khatedari' (tenant-occupant) rights over 158.3 bighas of land and recovery of possession from encroachers

The claim was based on succession from his father, whose name was mutated in revenue records in 1961

The defendants contested the suit, alleging that the appellant’s mother had executed a sale deed in their favor in 1963

Although the first defendant (Keshi) appeared through counsel and examined witnesses, she was eventually declared ex-parte for non-appearance on 21.05.1974

The suit was decreed in favor of the appellant on 16.08.1975

After a delay of 31 years, the first defendant filed an appeal in 2006, claiming she was unaware of the decree due to fraud and lack of service

The First Appellate Authority dismissed the appeal for gross delay, but the Board of Revenue and the High Court subsequently condoned the delay and remanded the matter for a fresh trial

The Court primarily applied Section 88 of the Rajasthan Tenancy Act, 1955 regarding tenancy declarations

It relied on Section 114(g) of the Evidence Act, 1872, establishing that an adverse inference may be drawn when a party withholds the best evidence

Regarding minors, the Court applied Section 8(2) of the Hindu Minority and Guardianship Act, 1956, which prohibits the disposal of a minor’s immovable property without court permission

The Court followed the principle in Union of India v. Jahangir Byramji Jeejeebhoy, holding that delay condonation cannot be an act of "generosity" that defeats substantial justice

Furthermore, it applied K.S. Shivappa v. K. Neelamma, which permits the repudiation of a voidable transaction through unequivocal conduct without a formal suit

The Court observed that the trial records contradicted the defendants' claim of lack of notice, as Defendant No. 1 had appeared via counsel, filed a written statement, and examined two witnesses (DW1 and DW2)

The Court found the allegations of fraud regarding the vakalatnama to be "deliberate falsehoods" and "improved upon at every stage"

Critically, the defendants failed to produce the 1963 sale deed during the trial despite seeking permission to do so, leading the Court to draw an adverse inference under the "best evidence" rule

Upon perusing the sale deed produced during the current proceedings, the Court noted that the appellant was a 12-year-old minor at the time of execution, and since no court permission was obtained as required by Section 8(2) of the HMGA, the transaction was voidable

The appellant effectively repudiated this transaction by obtaining the 1975 decree

Finally, the Court held that a 31-year delay is "gross" and cannot be condoned where the grounds for delay are belied by the record

The Court held that the condonation of a 31-year delay was illegal given the defendant's active participation in the original suit and failure to produce title documents

The Court restored the original order of the Revenue Court dated 16.08.1975, confirming the appellant's 'khatedari' rights

All pending applications were disposed of accordingly