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2012 DIGILAW 472 (JK)

Bhag Singh v. State Of J&K Through Tehsildar Agrarian Reform Bhaderwah

2012-07-31

Sanjay Gupta

body2012
1. Petitioner has filed present revision petition, against the order of Additional Deputy Commissioner Doda, with powers of Agrarian Reform commissioner Doda dated 20.10.2001, by virtue of which, appeal of petitioner filed against mutations no.62 and mutation no. 72 under agrarian reform act, have been dismissed. 2. Petitioner has challenged the impugned order on the grounds that land bearing Kh No. 208/79 min (6 kanals 14 marlas), Khasra no. 80 (9 Kanals 13 marlas), Kh No. 96 (12 kanals -17 marlas) Kh No. 99 (4 kanals 10 marlas) and Kh No. 104 measuring 08 kanals 08 marlas situated at village Jaginda Tehsil Badherwah, had been purchased by one Lakhmi Chand S/O Durga from Faquir Chand S/O Gomaon Brahamin for consideration through sale deed duly register prior to 1968. That this facts has been duly recorded in Jamabandi for the year 1968-69. That petitioner purchased the said land from Lakhmi chand S/O Durga for consideration of Rs. 5000/- in 1970 and possession was taken. That sale deed could not be executed and registered in this behalf as there was a ban for doing so. That on 11.12.1973 Lakhmi Chand vendor, executed an agreement to sell, which was not registered. That on 26.10.82, a mutation No. 62 was attested by Naib Tehsildar, in which it was held that land in question was under the ambit of definition of land covered under Agrarian Reform Act. The rights of petitioner were extinguished and proceeding under section 31 of Agr. Ref Act was recommended. That vide mutation no; 72 dated 12.3.88, the land in question was held to be in unlawful possession of petitioner and levy of 40 times of actual levy was ordered to be recovered from petitioner. That petitioner challenged the above said mutation no. 62 and 72 in appeal but same was dismissed on 20.11.2001, on question of limitation. 3. That impugned order is against facts and law and contrary to provision of Agrarian Reforms Act. That mutations impugned had been attested in ex-party and petitioner was not called. That mutation have been attested in violation of order No 22 and 23-A. 4. Heard, perused the records of Court below. I have also gone through the relevant law governing the matter. 5. That mutations impugned had been attested in ex-party and petitioner was not called. That mutation have been attested in violation of order No 22 and 23-A. 4. Heard, perused the records of Court below. I have also gone through the relevant law governing the matter. 5. From the perusal of records, it reveals that one Dharma Singh filed an appeal against mutation no; 72 and petitioner herein also filed an appeal against mutation no; 62 attested u/s 4 of Agrarian Reform Act and mutation no; 72 attested u/s 31 of Agrarian Reform Act. Court below passed a common order in both the appeals, on the ground that subject matter was the same. 6. In appeal filed by Dharam Singh, petitioner herein was arrayed as respondent. In appeals, orders of mutations were challenged on the grounds that Niab Tehsildar was not competent to pass order u/s 31 of Agr. Ref. Act and orders were passed an ex-party. 7. Court below after hearing the parities dismissed both the appeals on the grounds that, appellants were having knowledge of mutations, so appeals were held to be time barred. The concluding of order para of order impunged 20.10.2001 reads as under; 8. I have gone through the record available on file and given my due consideration involved in the matter. On 1.5.2000 the parties have stated that the case be decided on merit. So far mutation order no. 72 is concerned. It has been passed on the basis of mutation order no. 62 U/S 4 dated 26.10.82. The contention of Dharm Singh that he obtained the knowledge for attestation of said mutation no. 72 on 3.5.88 can not be relied upon as the said Dharma Singh was very much present at the time of attestation of mutation no. 62 dated 26.10.82. Moreover he has appended his signatures on the mutation itself. Similarly the appellant Bhag Singh has contended that he obtained the knowledge op the attestation of mutation order no. 62 and 72 on 3.5.88 is unbelievable as the appeal has been filed against mutation no. 62 ( being the basic mutation on the basis of which mention order no; 72 has been attested) after a lapse of more than six years. Further more the delay in filing the appeal has not been properly explained. 9. 62 and 72 on 3.5.88 is unbelievable as the appeal has been filed against mutation no. 62 ( being the basic mutation on the basis of which mention order no; 72 has been attested) after a lapse of more than six years. Further more the delay in filing the appeal has not been properly explained. 9. For the foregoing reasons the Court has come to the conclusion that both the appeals have been filed after the limitation period of sixty days as such are time barred. So both the appeals against the mutation order no; 62and 72 are dismissed without cost. Stay orders issued, if any, are vacated. 10. The file be consigned to records after due completion. Announced 20.10.2001 Sd/ Addl. Deputy Commissioner With powers of Commissioner Agrarian Reforms Doda. 11. Bare perusal of order impugned, it is evident that appeal of Bhag Singh has been dismissed as time barred. 12. In present case mutation no. 62 under section 4 of agrarian reform act has been attested on 26.10. 1982 and mutation no.72 under section 31 of act, has been attested on 10.12.1985. Whereas petitioner herein filed appeal on 16.5.1988. 13. I have gone through the memo of appeal, in which it has been stated that orders have been passed in exparte and he came to know about orders on 3.5.1988 from patwari concerned. 14. So perusal of these factual averments narrated, it is evident that, 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. 15. In present case, facts narrarrted for condoning delay in filling appeal does not inspire confidence of court, as no sufficient material was brought before court below. As per section 22 of agrarian reform act 1976, appeal is to be preferred within 60 days from order. Provisions of limitation act cannot be considered as tool for entertaining appeals after limitation time. Sufficient cause provided in section 5 of limitation act is not a mere formality, a party seeking relief in term of section has to take it seriously. Provisions of limitation act cannot be considered as tool for entertaining appeals after limitation time. Sufficient cause provided in section 5 of limitation act is not a mere formality, a party seeking relief in term of section has to take it seriously. Mere filing of an application under section 5 of limitation act, without mentioning specifically and believable facts with regard to sufficient cause, does entitled party, a relief under section 5 of limitation act. 16. Law is very much clear that each and every day after the limitation period is to be explained by a person seeking benefit of section 5 of limitation Act. In the present case a general averments have made with regard to sufficient cause. 17. 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 its entire 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. 8. In view of what has been discussed above, this revision petition is dismissed as order under challenge does not suffer from any legal infirmities. Record be sent back along with this order. File of this court shall be consigned to records after due compilation.