Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 397 (JK)

Naib Chand v. Dewan Chand

2012-07-09

Sanjay Gupta

body2012
1. Petitioner along with his two brother (Respondents 2and 3 herein) filed appeal, against the order of Niab Tehsildar Kishtwar and Tehsildar Kishtwar, passed in mutation no. 987 dt. 5.8.88 and mutation no. 1378 dt. 19.11.1990, attested under sections 4 and 8 of Agrarian Reform Act 1976 respectively, with regard to land measuring 16 marlas under Kh. No.424/1 situated in village Matta Tehsil and District Kishtwar, before Court below. 2. This appeal was filed before court below on the grounds, that mutations have been attested in exparte. That he was at Jammu in connection with his job for the last 20-28 years. That respondent taking the advantage of the fact, got mutation attested in his favour and has also constructed shops on the land. That land in question was in his personal cultivation in Kharief 1971, but in the year 1981, the patwari manipulated the entries on the name of respondent. That as per Agr. Ref. Act, if the tenant is out of possession of land in kharief 1971, then he has no right on the land in term of section 4 and 8 of the Act. That before changing the entries in revenue records, the mutating Officer is obliged to call owners of land. 3. The Court below after hearing the parties dismissed the appeal. The Court below based his order on the grounds that, total land under khasra no. 424/1 is 1kanal and 16 marlas, out of this land mutations have been attested with regard to 16 marals only. Rest of land 1 kanal is in possession of petitioner herein and his brothers. As such, appellants were having knowledge, so appeal was time-barred, having filed after more than 17 years. Appellant have failed to show sufficient reasons in preferring appeal after limitation time. Court below has also relied upon the affidavit filed by petitioner here in 1977, in which petitioner solemnly affirmed, that land in question was in cultivating possession of Dewn Chand respondent prior to 1971. Court below further held that appellant has attached photocopy of Parat Patwar ( copy prepared by patwari ) and no copy of Parart patwar has been attached. Lastly court held that only present petitioner singed the memo of appeal and application for condo nation of delay, whereas, other brothers did not sign. 4. Heard at length, gone through record. Court below further held that appellant has attached photocopy of Parat Patwar ( copy prepared by patwari ) and no copy of Parart patwar has been attached. Lastly court held that only present petitioner singed the memo of appeal and application for condo nation of delay, whereas, other brothers did not sign. 4. Heard at length, gone through record. Counsel for petitioner has elaborated all grounds taken in memo of revision petition, whereas respondent counsel has argued that, appeal before court below was time barred and appellant failed to show sufficient reason in preferring appeal after statuary time. 5. I have given my thoughtful consideration to whole aspect of matter and law governing the subject. 6. In present case mutations challenged before the court below were attested on dated 5-8-1998 and 19-11-1990, whereas appeal was preferred on 11-6-2005. As per section 22 of act, appeal is to be preferred within 60 days from order, so appeal was time barred and no reasonable and sufficient reasons have been mentioned in memo of appeal and application under section 5 of limitation act before court below. In application under section 5 of limitation act and memo of appeal, it has been mentioned that, petitioner herein was residing at Jammu for last 20 years. He received Rs. 2000/- from respondent. That in his absence, mutations have been attested and respondent constructed shops on land. He came to know recently from patwari and he received copies on 13.5.2005. 7. Bare perusal of these factual averments narrated, it is evident, and these have been organized and not actually happened. Section 5 of limitation act is enabling provision for preferring appeal after limitation time. Law of limitation has been meant for prudent and diligent person and not for person, who remains silent for long time and approaches court as per his own choice. Sufficient cause, as provided in limitation act is gatherable from facts of case. 8. In present case, facts narrarrted for condoning delay in filling appeal, does not inspire confidence of court. Law is very much clear that each and every day after the limitation period, is to be explained in well explained manners, by the person seeking benefit of section 5 of limitation Act. In the present case a general averments have made with regard to sufficient cause. 9. Law of limitation has to applied, where party fails to show sufficient cause. In the present case a general averments have made with regard to sufficient cause. 9. Law of limitation has to applied, where party fails to show sufficient cause. In AIR 1998 Page 2276 case title P.K Ramachandran v. State of Kerla it is held as under:- (C) Limitation Act 36 of 1953 -- Section 5 -- Delay -- Condonation of -- Law of limitation has to be applied with all its rigor prescribed by statue -- Court has no power to extend period of limitation on equitable grounds. Para 6 -- Law of limitation may harshly affect a particular party but it has to be applied with all its rigor prescribed by statue court has no power to extend period of limitation on equitable grounds. The discretion exercised by high court was thus, neither proper nor judicious.The order condoning delay cannot be sustained. 10. Further, brothers of petitioners, who are residing on other part of land at same place, have not challenged the mutations in time and even they had not signed the memo of appeal, delay application and affidavit before court below. Construction of shops on land cannot be completed in a minute and it would have taken enough time. Brothers of appellant also never objected at the time of construction. Here also, they have not joined the petitioner in preferring present revision, petitioner has arrayed them as contesting respondents, whereas no relief has been sought against them. Petitioner herein has also concealed the fact of execution of affidavit on 20.12.1977, where he has affirmed that; respondent is in cultivating possession of land prior to 1971. In memo of revision, it has been mentioned that, affidavit is not admissible. In law contents of affidavit are considered as, existence of facts mentioned in affidavit. Petitioner also filled a single appeal against two mutation attested on different dates by different authority, which was not maintain able under law. 11. Further petitioner did not attach, certified copies of impugned mutations, attested by Niab Tehsildar (No. 987 dt. 5.8.1988) and Tehsildar (No. 1378 dt. 19.11.1990) of Kishatwar, with memo of appeal, before court below. He annexed copies of mutation attested by Patwari (parat patwar), so appeal was not maintainable before court below on this count also. 12. In view of what has been discussed above, this revision petition is dismissed, as order impugned does not suffers from any legal infirmities. 13. 19.11.1990) of Kishatwar, with memo of appeal, before court below. He annexed copies of mutation attested by Patwari (parat patwar), so appeal was not maintainable before court below on this count also. 12. In view of what has been discussed above, this revision petition is dismissed, as order impugned does not suffers from any legal infirmities. 13. File of the court below is sent back along with a copy of this order. File of this court be consigned to record after due compilation.