Research › Search › Judgment

Rajasthan High Court · body

2009 DIGILAW 1524 (RAJ)

Jitendra v. Sunder Devi

2009-07-02

G.K.TIWARI

body2009
TIWARI, M.—This is a revision petition under section 84 of the Rajasthan Land Revenue Act 1956 (in short `the Act') against the impugned judgment dated 12.4.07 of Additional Divisional Commissioner Udaipur passed in appeal No. 64/06. 2. The facts, in brief, leading to the revision are that the non-petitioner No. 1 filed an appeal under Section 90(B)(7) of the Act before Additional Divisional Commissioner Udaipur against alleged order dated 25.5.04 of Urban Improvement Trust Udaipur (U.I.T.) alleging that the disputed plot is in possession of the appellant-non-petitioner and U.I.T. Udaipur has committed illegality in allotting the disputed land to the respondents-petitioners. Applications under Section 96 of the Civil Procedure Code (C.P.C.) section 5 of the Limitation Act along with application under Order 41 Rule 27 of the C.P.C. were also filed by the non-petitioner-appellant. The Additional Divisional Commissioner by his impugned order dated 12.4.07 set aside the alleged order dated 25.5.04 of the U.I.T. and remanded the case to the U.I.T. Udaipur. Aggrieved against this judgment of Additional Divisional Commissioner dated 12.4.87 this revision petition is filed. 3. I have heard the learned counsels for both the parties. 4. The learned counsel for the petitioners has argued that the petitioners are the genuine holders of the disputed plots. The non-petitioner No. 1 has illegally intruded upon the plots of the petitioners. It was also argued that the non-petitioner No. 1 appellant was not party before U.I.T. Udaipur so application under Section 96 of the C.P.C. was filed but Additional Divisional Commissioner did not decided this application which is mandatory before proceeding to decide the appeal when the appellant is not a party in the lower court. It was also contended that the application under Section 5 of the Limitation Act was also not decided by Additional Divisional Commissioner whereas according to 1993 RRD 24, 1998 DNJ (2) Raj. 767, 2006 RBJ 78, 2007 RBJ 119 and 2009 RBJ 315 it is mandatory to decide the point of limitation before proceeding to hear the appeal. It was also contended that the application under Section 5 of the Limitation Act was also not decided by Additional Divisional Commissioner whereas according to 1993 RRD 24, 1998 DNJ (2) Raj. 767, 2006 RBJ 78, 2007 RBJ 119 and 2009 RBJ 315 it is mandatory to decide the point of limitation before proceeding to hear the appeal. It was also pleaded that appeal before Additional Divisional Commissioner is filed under Section 90(B)(7) of the Act against the order passed under Section 90(B)(3) of the Act but an order passed under Section 90(B)(3) of the Act is not appealable under Section 90(B)(7) of the Act; only an order passed under section 90(B)(5) of the Act is appealable under Section 90(B)(7) of the Act, as is held in 2009 RRT(1) 330 (H.C.). It is also submitted that an application filed before Additional Divisional Commissioner under Order 41 Rule 27 of the C.P.C. was also not decided by the Additional Divisional Commissioner whereas it is mandatory to decide such an application before deciding the appeal. The learned counsel cited 2007 DNJ(1) Raj. 153, 1997 DNJ (1) Raj. 271, 1997 DNJ (2) Raj. 738, 1998 RBJ 137, 2006 RRT (1) 16 and 2009 RRT (1) 175 in support of this contention. 5. Countering the arguments of the petitioners, the learned counsel for the non-petitioner pleaded that although there is no specific speaking impugned order before Additional Divisional Commissioner so the proceedings of the note sheets are challenged. It was also argued that since no speaking order is passed on the application of section 5 of the Limitation Act, it is presumed that the delay is condoned, as held in 2002(1) DNJ 67 (SC). It is also pleaded that it was the duty of the petitioners to remind the court below that the application under Order 41 Rule 27 of the C.P.C. should be decided before deciding the appeal. Since the petitioners have not pressed their application before Additional Division Commissioner it was not necessary for the court to decide the application filed under Order 41 Rule 27 of the C.P.C. as held in 2003(3) WLC 265. It is also contended that the order of Additional Divisional Commissioner is a remand order which is not subject matter of revision. 6. I have given my thoughtful consideration to the rival contentions, perused the impugned judgment and gone through the record available on the file. 7. It is also contended that the order of Additional Divisional Commissioner is a remand order which is not subject matter of revision. 6. I have given my thoughtful consideration to the rival contentions, perused the impugned judgment and gone through the record available on the file. 7. At the very outset it would be worthwhile to mention that the non-petitioner No. 1 appellant filed the appeal under Section 90(B)(7) of the Act before Additional Divisional Commissioner against alleged order dated 25.5.04 of the U.I.T. Udaipur but perusal of the file shows that there is no such order of 25.5.04 passed by the U.I.T. Udaipur. The non-petitioner No. 1 appellant did not enclose a certified copy of the alleged order dated 25.5.04; only copies of the note sheets of U.I.T. Udaipur's file are enclosed along with the memo of appeal. Perusal of the enclosed note sheets of the U.I.T. dated 25.5.04 reveals that O.S.D. (Officer-on-special-duty) simply signed his initial and put date 25.5.04 and marked it to `Niyaman Shakha' (Regulationsation Section). This is by no stretch of argument or imagination is an order fit to be challenged in appeal. The extract of the note sheet enclosed shows that certain proceedings in regard to the disputed plots took place but there is no specific order as to what actually transpired and what was decided to be done. There is no specific formal order of any kind. At serial No. 23 of the note sheet of the file Secretary U.I.T. simply marked his initial and put date 24.5.04 and sent the file onward to the O.S.D. who mechanically signed his initial and put date 25.5.04. The non-petitioner No. 1 appellant has chosen to assail this initial of O.S.D. marked with dated 25.5.04 in the appeal before Additional Divisional Commissioner. The learned counsel for the non-petitioner appellant candidly accepted that there is no formal speaking order of any kind; as such he has challenged the proceedings of the note sheets. There is no provisions for challenging proceedings of a note sheet of an office under Section 90(B)(7) of the Act. 8. Since there is no alleged and imputed order dated 25.5.04, it passes comprehension as to what order has been set aside by Additional Divisional Commissioner by his impugned judgment dated 12.4.07 when there is no so-called order in existence. There is no provisions for challenging proceedings of a note sheet of an office under Section 90(B)(7) of the Act. 8. Since there is no alleged and imputed order dated 25.5.04, it passes comprehension as to what order has been set aside by Additional Divisional Commissioner by his impugned judgment dated 12.4.07 when there is no so-called order in existence. Perusal of the file shows that there applications were filed before Additional Divisional Commissioner, one under Section 96 of the C.P.C., second under section 5 of the Limitation Act and third one under Order 41 Rule 27 of the C.P.C. It is surprising that Additional Divisional Commissioner has ignored all the three applications and did not decide any one of them. Since the non-petitioner No. 1 appellant was not party before the U.I.T. Udaipur it was necessary for the first appellate Court of Additional Divisional Commissioner to decide application under Section 96 of the C.P.C. before proceeding to decide the appeal without which the appellant-non-petitioner does not acquire any locus for filing appeal. Similarly, it is mandatory for the court to decide an application filed before it under section 5 of the Limitation Act before proceeding to decide the appeal. Without deciding the point of limitation, the court does not acquire its jurisdiction to hear and decide the appeal. So it is mandatory to decide the application of Section 5 of the Limitation Act, as held in 1993 RRD 24, 1998 DNJ (2) Raj. 767, 2006 RBJ 78, 2007 RBJ 119 and 2009 RBJ 315. I am not inclined to agree with the learned counsel for the non-petitioner that it was not necessary for the court to decide the application under Order 41 Rule 27 of the C.P.C. as it was not pressed by the petitioners before the first appellate court. It has been expressly held by the Hon'ble Supreme Court in 2009 RRT(1) 175 that it is necessary to decide the application filed under Order 41 Rule 27 of the C.P.C. Consistently similar view is taken in 2007 DNJ (1) Raj. 153, 1997 DNJ(1) Raj. 271, 1997(2) Raj. 738, 1998 RBJ 137 and 2006 RRT (1) 16 also. 9. In view of the foregoing discussion the revision succeeds and the impugned judgment dated 12.4.07 of Additional Divisional Commissioner Udaipur is quashed. Pronounced.