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2008 DIGILAW 244 (RAJ)

Laxman Prasad v. Board of Revenue

2008-01-28

NARAYAN ROY, R.M.LODHA

body2008
Narayan Roy, C.J.—After having heard the counsel for the appellants and the contesting respondents, we have no doubt in holding that the appeal is wholly misconceived and devoid of any substance. Rather, it is an abuse of the process of the Court which will be clear from the facts that we indicate immediately here-in-after. 2. The controversy relates to an old khasra No. 753 admeasuring 1 bighas 10 biswa situate at Nikatpuri, Tehsil Sikarai, District Dausa. The suit for possession filed by the predecessor-in-title of the present appellants against the predecessor-in-title of respondents No. 5 to 9 was initially decreed on 19.02.1964. The predecessor-in-title of the present respondent No. 5 to 9 assailed the legality and correctness of the decree in appeal before the Revenue Appellate Authority. In the meanwhile, the possession of the subject land was taken by the decree holder (predecessor-in-title of the present appellants). The appeal was dismissed by the Revenue Appellate Authority on 17.07.1965. The concurrent decree passed by the Sub-Divisional Officer and the Revenue Appellate Authority were assailed by the predecessor-in-title of present respondents No. 5 to 9 before the Board of Revenue. By its order dt. 07.07.1970, the Board of Revenue accepted the appeal; set aside the order of the Revenue Appellate Authority dt. 17.07.1965 and remanded the matter to the Revenue Appellate Authority for fresh consideration and disposal. Upon remand, the Revenue Appellate Authority after hearing the parties, by its order dt. 10.05.1974 remanded the matter back to the Sub-Divisional Officer for fresh hearing and disposal. The said suit after remand has been dismissed in default on 23.02.1987. It is not in dispute that no application for restoration has been made and that in fact the suit for possession stands dismissed. 3. An application for restitution of possession was initially made by the predecessor-in-title of the present respondent No. 5 to 9 on 08.02.1977 but the said application was returned for filing before the Court competent to consider the said application. Thereafter, on 26.05.1987, fresh application under Sec. 144 of the Code of Civil Procedure for restitution of possession was made by the predecessor-in-title of the present respondents No. 5 to 9. The said application for restitution was initially dismissed by the Court of ACM on 30.04.1991 and appeal therefrom was dismissed by the Revenue Appellate Authority on 10.06.1993. Thereafter, on 26.05.1987, fresh application under Sec. 144 of the Code of Civil Procedure for restitution of possession was made by the predecessor-in-title of the present respondents No. 5 to 9. The said application for restitution was initially dismissed by the Court of ACM on 30.04.1991 and appeal therefrom was dismissed by the Revenue Appellate Authority on 10.06.1993. In the meanwhile, both the original parties expired and their legal heirs were brought on record. The present respondents No. 5 to 9 approached the Board of Revenue which by its order dt. 05.11.1996 set aside the orders of the ACM and Revenue Appellate Authority and remanded the matter to the Court of ACM. After remand, the ACM heard the parties and by its order dt. 21.10.2000, allowed the application under Sec. 144 of the Code of Civil Procedure and ordered the present appellants to restitute the possession of the subject land to respondent No. 5 to 9. The appeal from that order at the instance of the appellants has been dismissed by the Revenue Appellate Authority and by the Board of Revenue and then the Single Judge of this Court. 4. Two facts are clearly undisputed from the narration of facts that we noticed above, namely; (one) that the suit for possession filed by the predecessor-in-title of the appellants was initially decreed on 19.06.1964 by the trial Court, but later, on remand the said suit has been dismissed and the decree has been set aside, and (two) the possession of the subject land was taken by the predecessor-in-title of the present appellants from the predecessor-in-title of the respondents No. 5 to 9 during the pendency of the appeal before the Revenue Appellate Authority wherein the legality and correctness of the decree was under challenge. 5. The counsel for the appellants made two-fold submission. First, he sustained that the possession of the subject land was handed over by the predecessor-in-title of respondents No. 5 to 9 voluntarily and not in execution of the decree. Secondly, the counsel for the appellants contended that the application for restitution was barred by time. 6. In paragraph 3 of the application for restitution, there is a specific averment that the possession was taken by the decree holder forcibly during the pendency of the appeal. Secondly, the counsel for the appellants contended that the application for restitution was barred by time. 6. In paragraph 3 of the application for restitution, there is a specific averment that the possession was taken by the decree holder forcibly during the pendency of the appeal. Though this fact has been disputed by the appellants in reply to the application for restitution but from the available material, we find that there is nothing that could indicate that the possession of the subject land was handed over voluntarily by the predecessor-in-title of the present respondents No. 5 to 9. The facts do not suggest exclusion of the applicability of Section 144 of the Code of Civil Procedure. Rather, it is a gross case where the appellants having obtained the possession of the subject land pursuant to the decree passed in their favour by the trial, Revenue Court/s despite the said decree having been set aside by the superior Revenue Court/s and the suit for possession after remand having been dismissed in default and there being no application for restoration, still continue to enjoy the possession which they should have returned long back to the respondents No. 5 to 9. 7. In so far as the second contention of the counsel for the appellants that the application for restitution is barred by time is concerned, we find that the application made on 26.05.1987 for restitution of the possession of the subject land can by no stretch of imagination be said to barred by time, more so, in view of the fact that the suit came to be dismissed in default on 23.02.1987. As a matter of law, it was open to the respondents No. 5 to 9 to apply for restitution within three years from that date and that is what they did. 8. Thus, none of the contentions advanced by the counsel for the appellants has any merit. 9. The appeal is dismissed in limine. 10. By way of foot-note, we may observe that the possession has already been taken by the respondents No. 5 to 9 on 01.11.2000 pursuant to the order passed by the ACM on 21.10.2000. * * * * *