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2009 DIGILAW 596 (JK)

Kuldeep Singh v. Thakur Bishamber Singh

2009-11-30

A.K.Shan

body2009
1. The facts of the case are- On 27.7.1985, Naib-Tehsildar attested mutation No:1448 under Section 3-A of Agrarian Reforms Act( here-in-after the Act) in favour of respondent No:1 in respect of land comprising Khasra Nos:901,902,903,908,921 and 932 total land measuring 34 kanals 6 marlas situated in Raipur Dumana, Jammu. 2. On 3.X.2005, petitioners son and grand-son of respondent no: 1 preferred an appeal before Joint Commissioner Agrarian Reforms, Jammu, against the above said mutation. On 18.8.2006, the Commissioner observed that since the filing of appeal, appellants petitioner herein, have failed to persue the case regularly with the result that it was once dismissed in default and re-admitted thereafter. The Commissioner, instead of dismissing appeal in default of appearance, heard the learned counsel for respondent no: 1 and dismissed appeal on merit. 3. Petitioners filed revision petition before this Tribunal against the order dated 18.8.2006. While disposing the revision petition on 21.5.2007, this Tribunal observed that appellate court instead of dismissing appeal in default of appearance of the appellant has returned findings on merit which is not desirable in view of mandatory provision of Order 41 Rule 17 of CPC and remanded the case back to appellate court for hearing the parties afresh and decide the matter under law, with direction to parties to appear before the appellate court on 4.6.2007. 4. The file was received by appellate court on 19.6.2007, whereupon parties were put to notice. After putting appearance the learned counsel for the parties submitted written arguments, which were perused and appeal dismissed on 29.12.2007 by the appellate court, by holding that nothing new has emerged out of fresh arguments and the major facts at large have already been decided on merit vide order dated 18.8.2006. However, the appellate court also considered the facts of the case for dismissing the appeal as time barred. Other findings will be taken at an appropriate stage. 5. As per record one Jalla Ram was displaced person of 1947. Under Cabinet Order 578-C land measuring 34 kanal 6 Marlas situated in village Raipur Dumana Jammu consisting of number Khasra 864, 865, 891, 892, 982, 902, 903, 904, 907, 908, 921, 926, 927 and 929 was allotted to him. His three sons Bishamber, Prabnat and Indru were the members of his family. Their names were also recorded in Form-Alif. 6. Jalla died in the year 1960, leaving behind his three sons. His three sons Bishamber, Prabnat and Indru were the members of his family. Their names were also recorded in Form-Alif. 6. Jalla died in the year 1960, leaving behind his three sons. Two sons Prabnat and Indru died issueless. The land in question remained in possession of 3rd son Bishamber, the respondent no; 1. As he was in possession of land in Kharif 1971, so occupancy rights were conferred upon him under Section 3-A of Agrarian Reforms Act (here-in-after the Act) by attesting mutation No: 1448 on 27.7.1985. This mutation was challenged by petitioners on 3.x.2005 before court below i.e. Joint Commissioner Agrarian Reforms which as noticed was decided in absence of petitioners on 18.8.2006. 7. While dismissing the appeal, the appellate court held that same had been filed after two decades without explaining the delay. It was further held that litigation was between the son and his father and in life time of father, rights under Section 3-A of the Act cannot devolve upon his legal heirs. It was also observed that respondent no; 1 had disinherited his son Bishamber by dis-inheritance deed dated 3.10.2005, so appeal filed was misconceived. 8. I have heard the learned counsel for the parties at length and examined the record, including written arguments submitted by learned counsel for petitioners before the court below as well. 9. This Tribunal by its order dated 21.5.2007 allowed the revision petition filed by petitioners and set aside the order dated 18.8.2006 passed by the appellate court, with direction to hear the parties and decide the matter under law. But what the appellate court did has already been indicated above. 10. It appears that appellate court has failed in its duty as directed by this Tribunal. I adopt the following reasons to hold as such. 11. It is an admitted fact that appeal filed was totally time barred, so for condonation of delay an application was also filed by the petitioners under Order 41 Rule 3-A of CPC which has been made applicable to appeals under Agrarian Reforms Act mutus mutandis by Rule 48 of Agrarian Reforms Rules, 1977. The appellate court was 1st to decide the application for condonation of delay. It was only after condoning the delay, the appellate court had to enter upon the merits of case. Apparently this procedure was not followed by the appellate court. 12. The appellate court was 1st to decide the application for condonation of delay. It was only after condoning the delay, the appellate court had to enter upon the merits of case. Apparently this procedure was not followed by the appellate court. 12. Similarly under Order 41 Rule 17 of CPC an appeal is required to be dismissed for appellant's default without touching upon the merits of the case. 13. In the present case it was the legal duty of appellate court 1st to decide the application for condonation of delay. But to the contrary application for condonation was not taken up separately but decided in the main appeal, that too in absence of the petitioners or their counsel. All these factors were in notice of this Tribunal while deciding the 1st revision and that is why the appellate court was directed to decide the matter under law only. 14. Accordingly while deciding the appeal afresh on remand by this Tribunal, the appellate court was required to taken into consideration question of law taken note of here-in-above. 15. 1st of all application for condonation was required to be decided separately. On the face of the impugned order this has not been done. Even presuming, which is otherwise difficult to presume, that appellate court has held that impliedly the appeal is time barred by making observations in the penultimate para of the impugned order that attestation of mutation could not be said to have taken place at the back of appellants, then of course, the appellate court should have not proceeded to discuss the merits of case, as contemplated by Order 41 Rule 3-A of CPC. The appellate court has also fallen in error in holding that major facts have already been decided on 18.8.2006, and therefore nothing new emerges out of fresh arguments advanced by learned counsel for parties. This finding is palpably perverse. The order dated 18.8.2006 had already been set aside by this Tribunal and is as such non est and non-existent. The same does not stand revived by making above observations. 16. As there is no clear cut finding about the disposal of application for condonation of delay so observations made by appellate, as referred above do not amount to disposal of this application. The same does not stand revived by making above observations. 16. As there is no clear cut finding about the disposal of application for condonation of delay so observations made by appellate, as referred above do not amount to disposal of this application. Condonation of delay is a question of fact and it is only the domain of appellate court to discuss the facts and not that of revisional court. In this background the appellate court is required to decide the application for condonation of delay and if allowed then only to discuss the merit of case in the light of the arguments to be submitted or if agreed, already submitted in writing by learned counsel for petitioners. 17. As the appellate court has passed the impugned order in contravention of law discussed here-in-above which is mandatory in character, so the same is set aside and the case is remanded back to the appellate court for fresh disposal in accordance with observation made herein above, after hearing both the parties. The parties through their learned counsel are directed to appear before the appellate court on 5.1.2010. 18. The record of court below be sent back along with copy of this order and file of this Tribunal be consigned to records after due compilation.