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1978 DIGILAW 423 (ALL)

Ram Kanya v. Mahant Onkar Puri

1978-04-15

G.S.SIAL

body1978
JUDGMENT G.S. Sial, M. - This is a revision against the order of the Additional Commissioner, Allahabad Division, rejecting the revision under section 218 of the U.P. Land Revenue Act. 2. Briefly, the facts of the case are that Smt. Ram Kanya applied for mutation on the basis of a sale-deed dated August 19, 1968 executed by Mahant Prayag Giri in her favour for valuable consideration. The proclamation was duly issued and no objection was filed. Thereupon the trial court ordered mutation on April 10, 1969 in her favour. Later on May 7, 1971 Mahant Onkar Puri presented an application to the court saying that as he had no knowledge of the mutation proceedings and the orders being ex parte, should be set aside. He supported his application with an affidavit. The trial court on April 10, 1972 set aside the earlier orders saying that they have been passed ex parte. Against this order a revision was filed before the Additional Commissioner who upheld the order of the trial court and rejected the revision. Hence the revision before the Board under Section 219 of the U.P. Land Revenue Act. 3. The learned counsel for the revisionist submitted that the view taken by the trial court was not correct for the reasons that it has not given any opportunity to cross-examine the witnesses whose affidavits were filed along with the restoration applications though he had filed an objection challenging the averments of the affidavits. The trial court placed reliance on those affidavits while setting aside the earlier order. Therefore, in accordance to the learned counsel for the revisionist it is a fit case where the case should be remanded to the trial court to decide the restoration application afresh after giving an opportunity to the revisionist to show that the affidavits were not correct and also to lead evidence to show that the proclamation had been duly served. The learned counsel further submitted that the restoration itself was grossly time barred and the trial court has not given any reason for condoning the delay. He referred to 1965 R.D. 260 and 1975 R.D. 369 to contend that the restoration application is allowed without assigning reasons for condoning the delay such an order of restoration is without jurisdiction. 4. The learned counsel further submitted that the restoration itself was grossly time barred and the trial court has not given any reason for condoning the delay. He referred to 1965 R.D. 260 and 1975 R.D. 369 to contend that the restoration application is allowed without assigning reasons for condoning the delay such an order of restoration is without jurisdiction. 4. The learned counsel for the opposite party, in reply, stated that in a revision under Section 219 the Board shall not interfere with the finding of fact record by the courts below howsoever erroneous the finding of fact may be. He stated that the Board has to see the orders have been passed in to overall interest of justice. He submitted that the affidavit were on record and hence it was the duty of the revisionist to have filed counter-affidavit challenging the affidavit which he has failed to do. In the objection also it was not alleged that he would like to cross-examine the persons who have filed the affidavits. Further the proclamation itself was defective as there is no evidence to show that the notice had been affixed on the door of the court and it was never personally served on the Pradhan. The witnesses of the proclamation have alleged that they did not sign the proclamation and their signatures are farzi. As regards the service on the vendor there is no evidence to show that service was properly affected on him personally. The service was affected on one Kalka Prasad who is the Maukhtar-e-am of the vendor. Further the proclamation had been issued to be served on the Secry. of Mahant Prayag Giri Panchayati Akhara Mahanirwani Daraganj, which had been returned unserved. The Mahant was an office holder and there could be no Mukhtar-e-am of the office. The sale deed is not on the record. Accordingly he contended that the orders of the trial court were correct and could not be interfered with. As regards the condonation of the delay he submitted that the date of knowledge had been specifically stated by the opposite parties and the trial court has recounted all the circumstances in which the delayed knowledge accrued and, thereafter, deemed it fit to pass necessary orders. As regards the condonation of the delay he submitted that the date of knowledge had been specifically stated by the opposite parties and the trial court has recounted all the circumstances in which the delayed knowledge accrued and, thereafter, deemed it fit to pass necessary orders. In such case no specific order for condonation of delay was called for a the limitation stated from the date of knowledge which has not been denied by the revisionist. He also contended that his application for restoration was under section 201 wherein one of the conditions is that court ordering restoration should satisfy itself whether there is a failure of justice or not and whether the restoration was called for in the over all interest of justice as the property is of Akhara and not that of an individual. 5. I have considered the argument and gone through the record of the case. The contention of the learned counsel for the revisionist that the trial court should have given him an opportunity to cross-examine the witnesses whose affidavits have been filed alongwith the restoration application, is not well taken for the reason that he had full opportunity to file counter-affidavits challenging the contents of the affidavits which he failed to do. The failure in this respect lends credence to the contention of the opposite party counsel that the version of the opposite party should be believed. The further contention of the learned counsel was that the restoration being grossly time barred the trail court should have assigned reasons for condoning the delay. This contention is also misconceived for it was the averment of the opposite part that, as soon as he acquired knowledge, he moved the application for restoration to set aside the ex parte orders. The date of knowledge has not been specifically challenged. In such a circumstance no specific orders for condonation of delay were called for. In other respects, the order of both the courts below are quite detailed and give reasons for their conclusions. It is the duty of the Board under section 201 of the Land Revenue Act to ensure whether the restoration is in the over-all interest of justice or not. In my view a retrial of the case will not involve any injustice to any party. It is the duty of the Board under section 201 of the Land Revenue Act to ensure whether the restoration is in the over-all interest of justice or not. In my view a retrial of the case will not involve any injustice to any party. As such I am of the view that the opinion expressed by the learned Additional Commissioner is correct and does not call for any revisional interference. 6. The revision has no force and it is hereby dismissed.