Yaduraj Singh and Others v. Board of Revenue and Others
2012-10-04
SANJAY MISRA
body2012
DigiLaw.ai
Sanjay Misra, J.;— Heard Sri P.K.Kesari, learned counsel for petitioner, learned Standing Counsel on behalf of respondents no. 1 to 4 and Sri D.D.Chauhan on behalf of respondent no. 5 Gaon Sabha as also Sri Shyam Lal Yadav who has put in appearance by caveat on behalf of respondent no. 6. Since all the respondents are represented, the writ petition is being decided finally today itself. 2. This writ petition is directed against the order dated 04.07.2012 passed in Review Application No. 4 of 2010-11 filed in Second Appeal No. 29 of 1998-99 by the Board of Revenue U.P. at Allahabad. 3. Learned counsel for petitioner has submitted that during pendency of the second appeal, an application for compromise had been filed by the parties. However, the said compromise was not accepted by the Board of Revenue in the second appeal and therefore, it was rejected and further it was recorded by the Board of Revenue in its order dated 07.07.2005 that no substantial question of law is involved in the second appeal and hence, the second appeal was also dismissed. The order dated 07.07.2005 was passed on a restoration application filed by the petitioner for recalling the earlier order dated 19.05.2005 whereby the second appeal was dismissed. The restoratin application was allowed and the second appeal was restored to its original number. However, the compromise was rejected and the second appeal was dismissed since it involved no substantial question of law. 4. Learned counsel for petitioners has submitted that the petitioners filed review application no. 4 of 2010-11 in the aforesaid second appeal no. 29 of 1998-99 which application has been rejected by the Board of Revenue under the impugned order dated 04.07.2012 for the reason that the earlier order dated 07.07.2005 rejecting the compromise application was in accordance with law and secondly that the review application has been filed belatedly after 6 years without giving sufficient reason to condone the delay. 5. According to learned counsel for petitioners, the delay ought to have been condoned in as much as the parties had entered into compromise earlier and the rejection of the compromise by the Board of Revenue by its order dated 07.07.2005 was illegal. 6. In support of his submissions learned counsel for petitioners has placed reliance on a decision of Supreme Court in the case of Jarnail Singh (D) through L.Rs.
6. In support of his submissions learned counsel for petitioners has placed reliance on a decision of Supreme Court in the case of Jarnail Singh (D) through L.Rs. vs. Dhanna Singh and others reported in [2009 (107) RD 193] to state that a second appeal can be allowed only by formulating the substantial questions of law and in case no substantial question of law was formulated, the order would be illegal. 7. While placing reliance on a decision of this High Court in the case of Thakur Ram Chandra Ji Maharaj Brijman Mandir vs. Board of Revenue and others[2007 (102) RD 1] he states that when a second appeal is decided without framing the substantial question of law, the judgement will be bad in law. 8. He has also placed reliance on a decision of Supreme Court in the case of Improvement Trust, Ludhiana vs. Ujagar Singh and others reported in (2011 All.C.J 152) for stating that when there is an application for condonation of delay, an attempt should always be made to allow the matter to be contested on merits in the legal arena. 9. He has also placed reliance on a decision of Supreme Court in the case of Divisional Manager vs. Munnu Barricks and others reported in [2005(1) AWC 605] and submits that when serious questions of law are raised in an appeal, the delay in bringing the appeal should be condoned and liberal view should be taken thereupon. 10. He has also placed reliance on a decision of Supreme Court in the case of Ramji Dass and others vs. Mohan Singh reported in (1978 All. Rent Cases 496) to state that Court's discretion in an application for setting aside exparte decree should be exercised in favour of hearing and not to shut out the hearing. 11. He has also placed reliance on a decision of Supreme Court in the case of K.Venkata Seshiah vs. Kanduru ramasubbamma and others reported in (1991 All. C.J. 884) to submit that when there is a compromise which is found to be valid and genuine and the parties had acted upon it, the compromise ought to have been accepted. 12.
11. He has also placed reliance on a decision of Supreme Court in the case of K.Venkata Seshiah vs. Kanduru ramasubbamma and others reported in (1991 All. C.J. 884) to submit that when there is a compromise which is found to be valid and genuine and the parties had acted upon it, the compromise ought to have been accepted. 12. He has also placed reliance on a decision of this High Court in the case of Raj Kumar and others vs. D.D.C. & others reported in [2007 (102) RD 543] to state that when the parties have entered into a compromise, the matter should be decided on that basis. 13. He has lastly placed reliance on a decision of Supreme Court in the case of Suvaran Rajaram Bandekar and others vs. Narayan R. Bandekar and others reported in [JT 1996 (8) SC 290] and submits that when there is a compromise between the parties and a consent decree is passed, the Court should not interfere in the terms of compromise unless both the parties have given their consent. 14. From the aforesaid submissions and law cited by learned counsel for petitioners, there is no dispute that when there is a compromise between the parties, Court should endeavor to decide the proceedings in terms thereof and unless there is consent of the parties, the Court should not interfere with the compromise which has been acted upon. When delay is sought to be condoned in a Second Appeal where substantial question of law arises, liberal view should be taken in the condonation of delay and further where a second appeal is decided/allowed it should be only on a substantial question of law formulated by the Court. 15. The facts of the present case are slightly different. A suit under Sections 229-B & 176 of the U.P.Z.A. & L.R. Act was filed by the Respondent No.6, Ganga Singh against the petitioners. The said suit being Suit No.137/47/18 of 1988, Ganga Singh vs. Yaduraj Singh and others, was decreed. The petitioners feeling aggrieved there against filed Appeal No.92/1/1990/1997-98, Yaduraj Singh and others vs. Ganga Singh, which appeal was dismissed and the second appeal there against being Second Appeal No.29/1998-99 Yaduraj Singh and others vs. State of U.P. & others was also dismissed. Subsequent thereto, the petitioners filed Review Application No. 4 of 2010-11 in the second appeal after nearly 6 years.
Subsequent thereto, the petitioners filed Review Application No. 4 of 2010-11 in the second appeal after nearly 6 years. That review application has also been dismissed by the impugned order dated 04.07.2012. 16. Learned counsel for the petitioners has laid emphasis on the fact that when the compromise had been entered into between the parties before the Board of Revenue, the Board of Revenue ought not have rejected the compromise. While considering this submission, a perusal of the order dated 07.07.2005 passed by the Board of Revenue would be relevant. Under this order, the Board of Revenue has allowed the restoration application filed by the petitioners and set aside its earlier order dated 19.05.2005 and restored the second appeal to its original number. It then proceeded to consider the submission of the parties and found that the parties had filed a compromise duly verified which was to be the basis of deciding the second appeal. It was recorded by the Board of Revenue that the suit where from the second appeal arose was decreed by the Sub Divisional Officer on 22.08.1990 and the plaintiff opposite parties were declared to be owners of their respective shares over the land in dispute. 17. The appeal thereagainst was dismissed by the Additional Commissioner (Administration) Allahabad by the order dated 27.02.1999 whereafter the parties in the second appeal were claiming a compromise wherein the proposal was not to give 1/5th share to each of the parties. The Board of Revenue was of the view that when the suit and the appeal have been decided finding the share of parties then change of such shares by compromise was not lawful and hence it was not bound to accept the compromise, which it rejected. This view of the Board of Revenue clearly reflects that the Court cannot be made a forum for adjustment between the parties which is otherwise not lawful. The parties can always settle the matter out of Court and they cannot insist before a Court to put its stamp on an unlawful compromise, as such, the view of the Board of Revenue taken therein cannot be said to be suffering from any error in law, particularly when the matter had been earlier decided on contest between the parties. 18.
18. The second reason for which the Board of Revenue rejected the second appeal after restoring it, was that there was no substantial question of law involved in the second appeal. Apart from the fact that the Court is required to frame substantial question of law but if it found that there was no substantial question of law involved, it was duty of the appellant in appeal to formulate or frame the substantial questions of law that arose according to them in the second appeal. 19. In the present case the Board of Revenue found that there was no substantial question of law involved in the second appeal. There is nothing on record to indicate that the petitioners had in any manner formulated the substantial question of law for being considered by the Board of Revenue, as such, when the petitioners themselves did not canvass any substantial question of law in the appeal and if it was not involved in the second appeal, it cannot be held that the order dated 07.07.2005 passed by the Board of Revenue on a restoration application after restoring the second appeal is in any manner illegal on that score. 20. The petitioners thereafter appear to have filed a review application in that second appeal. The review application was filed after more than 6 years and, therefore, it was barred by time. The petitioners filed an affidavit alongwith an application under Section 5 of the Limitation Act to condone the delay. That affidavit has been brought on record as Annexure-8 to the writ petition and a perusal of the affidavit indicates that the reason for filing the review application after 6 years was that the counsel for the petitioners advised that a review application should be filed in the second appeal. Clearly, there is no mention of any other reason to condone the delay in filing the review application after 6 years. 21. The review application has therefore, been rejected on both the scores. Firstly, on the ground that delay in making the review application has not been explained and secondly on the ground that the compromise which was earlier sought to be made the basis of decision of second appeal was rightly rejected by the Court under its order dated 07.07.2005. As such both the reasons given in the impugned order dated 04.07.2012 cannot be held to be illegal in any manner whatsoever.
As such both the reasons given in the impugned order dated 04.07.2012 cannot be held to be illegal in any manner whatsoever. It is settled law that when a party seeks condonation of delay in bringing an action he has to give sufficient reasons for condoning the delay. This is more so because in case the order had attained finality 6 years before and the parties had acted thereupon, their status with respect to the property was settled and after lapse of such a long time it would not be appropriate to unsettle the established status of the parties. Therefore, when the review application has been rejected on the ground of non-explanation or any sufficient cause for condonation of delay, there was no error in the said order. The Hon'ble Supreme Court in paragraphs 20, 21, 22 & 23 of the judgment in the case of Vijay Kumar Kaul Vs. Union of India reported in 2012 (2) ESMC 1369 held as quoted hereunder:- "20. In City Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala & Ors.[7] this Court has opined that one of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum. 21. From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a court for claiming seniority, it is obligatory on his part to come to the court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy. 22. The acts done during the interregnum are to be kept in mind and should not be lightly brushed aside. It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches.
22. The acts done during the interregnum are to be kept in mind and should not be lightly brushed aside. It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time. 23. In the case at hand, as the factual matrix reveals, the appellants knew about the approach by Parveen Singh and others before the tribunal and the directions given by the tribunal but they chose to wait and to reap the benefit only after the verdict. This kind of waiting is totally unwarranted." 22. The law laid down by the Hon'ble Supreme Court squarely applies to the facts and circumstances of the present case. 23. Under such circumstances, there is no merit in this writ petition. It is, accordingly, dismissed. 24. No order is passed as to costs. _____________