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Rajasthan High Court · body

2003 DIGILAW 6 (RAJ)

Ram Narain v. Board of Revenue

2003-01-02

SUNIL KUMAR GARG

body2003
Honble GARG, J.–Both the above-mentioned writ petitions are being decided by this common order as in both of them common questions of law and facts are involved. S.B. Civil Writ Petition No. 1047/1998 (2). This writ petition under Article 226 of the Constitution of India has been filed by the petitioners on 18.3.1998 against the respondents with the prayer that by an appropriate writ, order or direction, the order dated 16.4.1992 (Annex. 4) passed by the Collector, Bikaner by which the prayer of the petitioners about maintainability of the appeal filed by the respondent No.4 Jugal Kishore on the ground of limitation, was rejected and furthermore, the judgment dated 16.1.1998 (Annex. 5) passed by the Board of Revenue, Ajmer by which the revision petition filed by the petitioners against the order of the learned Collector, Bikaner dated 16.4.1992 (Annex. 4) was dismissed, be quashed and set aside. (3). The case of the petitioners as put forward by them in this writ petition is as follows :- One Roop Chand, father of the respondent No.4 Jugal Kishore, was a khatedar tenant of Khasra No. 8, measuring 125 bighas and 11 biswas in village Himatasar, Tehsil and District Bikaner. One Bhagwan Das, grand-father of the respondent No.3 Narain Das, claimed khatedari rights over has lands by way of application under Section 19 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as ``the Act of 1955) before the Sub Divisional Officer (North), Bikaner. The Sub Divisional Officer vide his order dated 7.8.1958 (Annex. 1) declared that Bhagwan Das had acquired khatedari rights over the lands under Section 19 of the Act of 1955. It was further submitted by the petitioners that prior to the declaration of the khatedari rights, Bhagwan Das executed a sale- deed of the lands in favour of his grand-son Narain Das (respondent No.3) on 17.10.1957. After the grant of the khatedari rights in favour of Bhagwan Das, the mutation was recorded in the name of Bhagwan Das vide mutation No. 16 dated 27.1.1961. Later on, mutation No. 224 dated 3.2.1975 was recorded in favour of Narain Das (respondent No.3). A copy of the said mutation dated 3.2.1975 is marked as Annex. 2. It was further submitted by the petitioners that Narain Das (respondent No.3) was recorded as khatedari tenant in the khatoni since 1961 and was in cultivatory possession of the same from 1961 till 1989. A copy of the said mutation dated 3.2.1975 is marked as Annex. 2. It was further submitted by the petitioners that Narain Das (respondent No.3) was recorded as khatedari tenant in the khatoni since 1961 and was in cultivatory possession of the same from 1961 till 1989. It was further submitted by the petitioners that the respondent No.3 Narain Das transferred part of the said lands in favour of the petitioners vide registered sale deed dated 2.6.1978 and mutation Nos. 228 and 229 were attested in favour of the petitioners respectively on 10.12.1978 and 16.11.1978. It was further submitted by the petitioners that on 23.11.1989, the respondent No.4 Jugal Kishore filed an appeal against mutation dated 3.2.1975 before the Collector, Bikaner against respondent No.3 Narain Das alone without impleading the petitioners as parties, although the petitioners were shown as khatedar tenants of the lands since 1978. The respondent No.3 Narain Das contested the appeal without impleading the petitioners. He contested the appeal on the ground of limitation also. The preliminary objection regarding limitation raised by the respondent No.3 Narain Das was decided by the Collector, Bikaner vide his order dated 11.7.1991, a copy of which is marked as Annex. 3. According to the petitioners, the learned Collector allowed the application under Section 5 of the Limitation Act without holding that there was any sufficient cause for preferring the appeal beyond limitation or condoning the delay of 14 years. The Collector was of the view that the question regarding the mutation being void was raised and, therefore, condoned the delay. Thereafter, the petitioners made an application for being impleaded as party in that appeal filed by the respondent No.4 Jugal Kishore and that application was allowed by the learned Collector, Bikaner vide order dated 11.3.1992 and the petitioners were impleaded as party in that appeal. The further case of the petitioners is that when they became the party to that appeal filed by the respondent No.4 Jugal Kishore, they contested the same on the ground of limitation, but the prayer of the petitioners about maintainability of that appeal on the ground of limitation was rejected by the learned Collector, Bikaner vide order dated 16.4.1992 holding inter-alia that the question of limitation had already been decided vide order dated 11.7.1991 (Annex. 3). Aggrieved from the order dated 16.4.1992 (Annex. 3). Aggrieved from the order dated 16.4.1992 (Annex. 4) passed by the learned Collector, Bikaner, the petitioners preferred a revision petition before the Board of Revenue and the same was dismissed by the Board of Revenue through judgment dated 16.1.1998 (Annex. 5) holding inter-alia :- (i) That non-presence of the petitioners before the Court at the time when the applicable under Section 5 of the Limitation Act was allowed by the Court was not found the ground on which maintainability of appeal on the ground of limitation can be challenged. (ii) That since at the time of deciding the application under Section 5 of the Limitation Act for condonation of delay, the concerned Court took into account the facts and circumstances of the case and, therefore, in such discretionary matter in revision, interference should not be made. (iii) That the fact that the petitioners were not party before the Court at the time when the applicable under Section 5 of the Limitation Act was allowed, would not make the difference to the order Annex. 3 dated 11.7.1991 by which the appeal was treated within limitation. (iv) That apart from this, since the appeal on merit had not been deci- ded as yet, therefore, it would not affect the case of the petitioners. Aggrieved from the impugned order Annex. 4 dated 16.4.1992 passed by the learned Collector, Bikaner and impugned judgment Annex. 5 dated 16.1.1998 passed by the Board of Revenue, the petitioners have preferred this writ petition. (4). In this writ petition, the main contention of the learned counsel for the petitioners is that the prayer of the petitioners about maintainability of the appeal on the ground of limitation was wrongly rejected by both the courts below and it should have been allowed and the appeal filed by the respondent No.4 Jugal Kishore should have been treated as time barred. (5). On the other hand, the learned counsel appearing for the respondents supported the impugned order Annex. 4 dated 16.4.1992 passed by the learned Collector, Bikaner and judgment dated 16.1.1998 (Annex. 5) passed by the Board of Revenue. (6). I have heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents and gone through the materials available on record. (7). 4 dated 16.4.1992 passed by the learned Collector, Bikaner and judgment dated 16.1.1998 (Annex. 5) passed by the Board of Revenue. (6). I have heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents and gone through the materials available on record. (7). In my considered opinion, the reasons, which have been assigned by both the courts below while rejecting the prayer of the petitioners about the maintainability of the appeal on the ground of limitation, are cogent one and from perusing the judgment of the Board of Revenue Annex. 5 dated 16.1.1998, it clearly appears that the point in question was in the mind of the Board of Revenue. When the applicable under Section 5 of the Limitation Act in appeal of the respondent No.4 Jugal Kishore was allowed by the learned Collector, Bikaner through order Annex. 3 dated 11.7.1991, at that time, the petitioners were not party to that appeal and after that, the petitioners became the party to that appeal through order dated 11.3.1992 and since the appeal of the respondent No.4 Jugal Kishore had already been admitted and found within limitation and in that appeal the petitioners themselves became the party, therefore, the petitioners had no locus standi or right to assail that appeal on the ground of limitation in which they themselves became party later on. Thus, no illegality has been committed by the courts below in rejecting the prayer of the petitioners about maintainability of the appeal on the ground of limitation. (8). Apart from this, it may be stated here that sufficiency or otherwise of cause under Section 5 of the Limitation Act, is normally a matter which rests in the jurisdiction of the Courts below and the High Court in its revisional side or in its writ jurisdiction should not interfere with such orders, which have been passed by the courts below on appraisal of the evidence on record, in the matter of limitation. Furthermore, under Article 226 of the Constitution of India, the High Court does not sit or act as an appellate authority over the actions of the subordinate authorities or tribunals. The jurisdiction is supervisory in nature. From this point of view also, this Court does not want to interfere with the discretionary order dated 16.4.1992 (Annex. Furthermore, under Article 226 of the Constitution of India, the High Court does not sit or act as an appellate authority over the actions of the subordinate authorities or tribunals. The jurisdiction is supervisory in nature. From this point of view also, this Court does not want to interfere with the discretionary order dated 16.4.1992 (Annex. 4) passed by the learned Collector, Bikaner, which was upheld in revision by the Board of Revenue through judgment dated 16.1.1998 (Annex. 5). (9). The learned counsel for the petitioners has placed reliance on the decision of the Honble Supreme Court in Smt. Sawarni vs. Smt. Inder Kaur and Ors. (1). In my considered opinion, this authority would not be relevant at this stage because the Board of Revenue through impugned judgment Annex. 5 has made the point clear that the appeal of the respondent No.4 Jugal Kishore in which the petitioners were made party, had not been decided on merit. Since that authority pertains to arguments on merits, therefore, at this stage, it would not be helpful to the learned counsel for the petitioners. (10). For the reasons stated above, there is no merit in this writ petition and the same is liable to be dismissed. S.B. Civil Writ Petition No. 1035/1998 (11). This writ petition also raises the same controversy which has been decided above in S.B. Civil Writ Petition No. 1047/1998 and thus, for the reasons given in S.B. Civil Writ Petition No. 1047/1998, there is no merit in this writ petition also and the same is also liable to be dismissed. Accordingly, both the above-mentioned writ petitions filed by the petitioners are dismissed. No order as to costs.