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2010 DIGILAW 710 (RAJ)

Amar Singh v. Hanuman Singh

2010-03-29

G.K.TIWARI, RAKESH HOOJA

body2010
DR. HOOJA, C.—This is an appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the impugned judgment dated 29.7.04 of Revenue Appellate Authority Sikar. 2. Briefly, stated, the facts of the case are that the respondent No. 1 plaintiff Hanuman Singh filed a suit against his father Kheta Ram (deceased) u/Sec. 88 of the Act in the Court of Assistant Collector Khetri who allowed the suit vide his judgment and decree dated 26.12.1978. Thereafter the appellants preferred an appeal after lapse of twenty year before Revenue Appellate Authority Sikar who dismissed the appeal as time barred by his impugned judgment dated 29.7.04 aggrieved against which this second appeal is filed. 3. The learned counsel for the respondents has filed an application under Order 41 Rule 27 of the Civil Procedure Code (C.P.C.) for production of additional documents which comprise of a certified copy of the plaint of the suit filed by the appellant before Sub-Divisional Officer Khetri and a certified copy of the order dated 27.7.01 of Sub-Divisional Officer Khetri who dismissed the suit in default. 4. We have heard the learned counsels of both the parties. 5. The learned counsel for the appellants has contended that the disputed land originally belonged to late Jaswant Singh son of Mohan Jat. After the death of Jaswant Singh the disputed land was mutated through the mutation No. 63 dated 13.11.1978 in the name of a brother of the deceased khatedar Jaswant Singh, Kheta Ram. This mutation was illegally attested as the deceased khatedar Jaswant Singh had a daughter who was real successor to Jaswant Singh; but she was neither heard during the course of mutation process nor her name was recorded in the mutation register or any subsequent revenue record. The appellants are the sons of the daughter Gulab Kaur of the deceased Jaswant Singh. The respondent-plaintiff did not implead the appellants in the suit which was filed only against Kheta Ram (deceased) who collusively gave his consent to the averments of plaint and a consent decree was accordingly issued wrongfully. Since the appellants were not parties to the suit, as soon as they came to the knowledge of the consent decree dated 26.12.1978 of the trial court, they filed on appeal under Section 223 of the Act before Revenue Appellate Authority Sikar. Since the appellants were not parties to the suit, as soon as they came to the knowledge of the consent decree dated 26.12.1978 of the trial court, they filed on appeal under Section 223 of the Act before Revenue Appellate Authority Sikar. But Revenue Appellate Authority without going into the merit of the case dismissed the appeal on the basis of point of limitation only. Revenue Appellate Authority did not appreciate judicially the facts mentioned under Section 5 of the Limitation Act in which it was clearly stated that the mother of the appellants was the daughter of the deceased khatedar Jaswant Singh, so the disputed land should have been mutated in her name as daughter, but the mutation was carried out in the name of brother of the deceased khatedar Jaswant Singh. The appellants were not privy to the suit between the son (Hanuman Singh) and father (Kheta Ram) as they were excluded from the suit. This fact came to their knowledge through one of the sons of Kheta Ram, Sher Singh who obtained a copy of the impugned judgment of the trial court dated 26.6.1998. Hence the delay in filing the appeal; but Revenue Appellate Authority overlooked all these facts and illegally dismissed the appeal as time barred. The learned counsel cited 2009(1) RRT 467 and 1998 RRD 319 that the appeal should not have been decided on technical matter of limitation only but should have been decided on merits. It was also contended that the suit was decreed on the basis of a so-called will allegedly written by the khatedar Jaswant Singh in favour of Hanuman Singh, but the language of the document annexed as Ex. P.1A is not that of a will. It does not say why the all alleged will was written. The learned counsel cited AIR 2001 (SC) 2802 and 1995 DNJ (SC) 402 to support his contention. 6. Strongly opposing the contentions of the appellants, the learned counsel for the respondents contended that the original khatedar Jaswant Singh died in the year 1973 and after his death a mutation was carried out in the name of brother (Kheta Ram) of the deceased khatedar (Jaswant Singh) as he was not survived by any son. Thus a mutation was attested on 13.11.1978; but this mutation order dated 13.11.1978 was never challenged before any competent court by anybody. Thus a mutation was attested on 13.11.1978; but this mutation order dated 13.11.1978 was never challenged before any competent court by anybody. So this attained finality; and accordingly Kheta Ram was entered in the revenue record as a khatedar tenant of the disputed land. The appellants claim to be the sons to the daughter of the deceased khatedar. At the time of death of Jaswant Singh the mother of the appellants was alive but she never challenged the mutation. Now the appellants do not have any right or claim in the disputed land. Jaswant Singh the deceased khatedar had also written a will in favour of Hanuman Singh son of Kheta Ram which is exhibited as Ex. P.1A and duly proved by a attesting witness who was the then Sarpanch of the concerned Gram Panchayat. Thus the will Ex. P. 1A is duly proved an attesting witness, of the will. It was also pleaded that the appellants had earlier filed suit for declaration of khatedari rights in the disputed land in the court of Assistant Collector but instead of pressing it further they cleverly got it dismissed in default. Any claim of the appellants pertaining to their khatedari rights in the disputed land will be decided by the competent revenue court in a suit and not through this appeal. The disputed land is transferred in the name of Kheta Ram and thereafter in the name of Hanuman Singh. If the appellants had any grievance they should have agitated against the transfer of the land in the name of Kheta Ram. The appeal was filed after a lapse of twenty years and no sufficient reason is given for this inordinate delay of twenty years. Both the parties are close relatives of each other; and it is impossible to believe that the appellants should not have the knowledge of the entry of the disputed land in the name of Kheta Ram and subsequently Hanuman Singh. The appellants claimed to know about the impugned judgment of trial Court through one Sher Singh; but no affidavit of Sher Singh is filed pertaining to the averment made in application of Section 5 of the Limitation Act. The appeal was filed after inordinate delay of twenty years, the Revenue Appellate Authority rightly dismissed the same as time barred. The appellants claimed to know about the impugned judgment of trial Court through one Sher Singh; but no affidavit of Sher Singh is filed pertaining to the averment made in application of Section 5 of the Limitation Act. The appeal was filed after inordinate delay of twenty years, the Revenue Appellate Authority rightly dismissed the same as time barred. The learned counsel cited 2001(2) RLW (Raj.) 923, 1996 RRD 410, 1999 RRD 152, AIR 1998 (SC) 2276 ) in support of his contention. It was also contended that the copy of the impugned judgment of the trial Court was not obtained by the appellants but by someone else as such the appeal was not competent according to 1984 RRD 570. So Revenue Appellate Authority did not commit any illegality in dismissing the appeal. 7. We have given thoughtful consideration over the contentions of the learned counsel of rival parties, perused the impugned judgments of both the lower Courts and gone through the record. 8. With regard to the application filed by the respondents under Order 41 Rule 27 of the C.P.C., it is stated that the documents sought to b produced are a certified copy of the plaint of the suit filed by the appellants in the court of Sub-Divisional Officer Khetri and a certified copy of the order dated 27.7.01 of Sub-Divisional Officer Khetri; both the documents being public documents of Judicial proceedings are taken on record allowing the application filed under Order 41 Rule 27 of the C.P.C. 9. Perusal of the record shows that the impugned judgment of the trial Court was passed on 26.12.1978; whereas the appeal was preferred against this impugned judgment on 31.7.1998 i.e. after lapse of almost twenty years. The reason given for this delay of twenty years is that the appellants were not parties before the trial Court and they came to the knowledge of the impugned judgment of trial Court on 26.6.1998 when one Sher Singh gave a copy of the impugned judgment and decree of the trial court. The appellants have not produced any affidavit of the said Sher Singh to the effect that he informed the appellants for the first time about the judgment of the trial court on 26.6.1998. The appellants have not produced any affidavit of the said Sher Singh to the effect that he informed the appellants for the first time about the judgment of the trial court on 26.6.1998. Both the parties are close relatives and it is improbable that appellants did not know about the fact that the land of Jaswant Singh (`Nana' of the appellants) was mutated in favour of Kheta Ram and thereafter transferred to Hanuman Singh through a court decree. According to 2001(2) RLW (Raj.) 923 (H.C.), 1999 RRD 152 (HC), 1998 AIR (SC) 2276, 2007 RRD 311 (H.C.) it has been explicitly held that the appellants must explain sufficient cause satisfactorily for condonation of delay. But in this case the reason given for the delay due to lack of timely knowledge of the impugned judgment of trial Court is not sufficient, reasonable and satisfactory, particularly when both the parties are in such a close relation. As far as the plea of the appellants that they were not parties to the suit before the trial Court is concerned, the suit was filed by the respondents-plaintiff against Khetta Ram who was the recorded khatedar of the disputed land. Since the plaintiff had impleaded recorded khatedar as defendants, it was not necessary to implead the appellants as parties in view of the fact that their names were not recorded in any revenue record in respect of the disputed land. For condonation of delay, delay of every day must be explained. But in this case, inordinate delay of twenty years have not been explained with sufficient cause in reasonable and satisfactory manner. So Revenue Appellate Authority did not commit any illegality in not condoning the delay of twenty years and dismissing the appeal as time barred. 10. However, in the interest of justice, besides holding the appeal as time barred, we would like to cast a glance on the merit of the case also in keeping with the pronouncement of Hon'ble Rajasthan Court as reported at page 319 of RRD 1998. It is undisputed fact that Jaswant Singh was the khatedar tenant of the disputed land and on the death of Jaswant Singh in the year 1973 a mutation of the disputed land was carried out in favour of his brother Kheta Ram on 13.11.1978 through mutation No. 63. It is undisputed fact that Jaswant Singh was the khatedar tenant of the disputed land and on the death of Jaswant Singh in the year 1973 a mutation of the disputed land was carried out in favour of his brother Kheta Ram on 13.11.1978 through mutation No. 63. After Kheta Ram has been recorded as khatedar tenant of the disputed land, the plaintiff-respondent Hanuman Singh filed a suit against Kheta Ram mainly on the ground that the deceased khatedar Jaswant Singh, during his lifetime had written a will in favour of the plaintiff respondent with regard to the disputed land. This will has been exhibited as Ex. P. 1A and verified through evidence of one of the attesting witnesses-the then Sarpanch of the Gram Panchayat. Thus, the will, written on a plain paper has been verified by one of the attesting witnesses, and as such it stands proved in keeping with the pronouncement of Hon'ble Supreme Court as reported in 1995 DNJ (SC) 402, and AIR 2001 (SC) 2802 . Thus, will has been got duly exhibited and proved before the trial Court. So there seems to be no illegality on the part of trial Court to issue consent decree based primarily on the strength of the will so exhibited and proved. It would not be out of mention here that even if for the sake of arguments, the contentions of the appellants are admitted and the impugned judgments of both the lower courts are set aside. the net effect of this would be that the disputed land would go back in the name of Kheta Ram only, as Kheta Ram was the recorded khatedar at the time of institution of the suit. Thus, even if the appeal were to be allowed with dismissal of both the impugned judgments, the appellants do not stand to get any relief in respect of the disputed land. Apparently the appeal is misconceived. 11. It is worth-mentioning here that the appellants had filed a suit against the respondent Hanuman Singh under Sections 88 and 188 of the Act in the Court of Sub-Divisional Officer Khetri. The suit was registered as 58/99. Perusal of the order sheet dated 27.7.01 of the trial Court shows that this suit was dismissed in default. But the appellants have not revealed this fact before this Court. The suit was registered as 58/99. Perusal of the order sheet dated 27.7.01 of the trial Court shows that this suit was dismissed in default. But the appellants have not revealed this fact before this Court. In fact any relief with regard to the disputed land would be provided to the appellant through a regular suit for the grant of khatedari rights in respect of the disputed land and not through this appeal. The appellants should have pursued their suit. But hiding this fact of filing of a suit, the appellants have approached the appellate Court, which shows that filing of a suit, the appellants have approached the appellate court, which shows that they have not come with clean hands. Thus, this appeal woefully lacks in merit also. 12. In view of the foregoing discussion, the appeal has no force and as such it stands dismissed. Pronounced.