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2014 DIGILAW 1912 (RAJ)

Marudhar Kanwar v. Board of Revenue

2014-11-26

ARUN BHANSALI

body2014
JUDGMENT : These writ petitions are directed against judgment dated 17.10.1996 passed by the Board of Revenue, judgment dated 02.11.1991 passed by Additional Divisional Commissioner, Jodhpur and judgment dated 25.02.1991 passed by District Collector, Jodhpur. The facts in brief may be noticed thus : respondents Bhanwar Singh and six others claiming themselves to be legal representatives of Smt. Sugan Kanwar and Sohan Kanwar filed an appeal on 16.06.1989 under Section 75 of the Rajasthan Land Revenue Act, 1956 ('the Act') against order dated 13.11.1974, whereby, Mutation No.60 was accepted qua the land situated at village Nandari against Dariyav Kanwar, Baluu Singh and the Gram Panchayat, inter alia, with the averments that the land, which was subject matter of appeal was in the possession of Rewat Suingh, Shaitan Singh at the time of settlement; Rewat Singh was unmarried, who adopted Sugan Kanwar mother of appellant Bhanwar Singh and six others; after his death, Saithan Singh also expired; it was claimed that on death of Rewat Singh tenancy rights regarding half portion of the disputed land were succeeded by Smt. Sugan Kanwar and after death of Shaitan Singh, the same were succeeded by his wife Dariyav Kanwar and appellant Sohan Kanwar; Balu Singh had no right or share in the said property; whereafter alternative pleas were raised regarding circumstances that if Balu Singh had a share, if Sugan Kanwar's adoption to Rewat Singh was not accepted and it was claimed that the mutation which was accepted in the year 1974, the legal representatives of Rewat Singh were not entered/all the legal representatives of Shaitan Singh were not entered; it was claimed that after death of Shaitan Singh alongwith Dariyav Kanwar his daughters Sugan Kanwar and Sohan Kanwar also became Khatedars, however, they were not indicated. The respondent Smt. Dariyav Kanwar accepted the plea raised by the appellants; the District Collector, Jodhpur vide his order dated 25.02.1991 observed that the foremost issue pertains to limitation of the appeal, regarding which, a separate order has been passed and appeal has been treated as within limitation; where after, in view of lack of any contest on part of Dariyav Kanwar, the District Collector, Jodhpur came to the conclusion that after death of Rewat Singh, Sugan Kanwar had share and after her death appellant No.1-7 had share in the said property; Sohan Kanwar being daughter of Shaitan Singh also had a share and, therefore, the order passed on 13.11.1974 was liable to be set aside and ordered that mutation in the name of appellants qua share of Rewat Singh and Shaitan Singh alongwith Dariyav Kanwar be accepted; however, the order would not affect the share of Balu Singh in the land. Against the judgment dated 25.02.1991 passed by the District Collector, Jodhpur, petitioner Renu and others in S.B. Civil Writ Petition No.148/1998 and Smt. Marudhar Kanwar – petitioner in S.B. Civil Writ Petition No.262/1998 filed appeals before the Additional Divisional Commissioner, Jodhpur questioning the legality and validity of the order passed by the District Collector, inter alia, pointing out that after the land was mutated in the name of Dariyav Kanwar and Balu Singh in the year 1974, Dariyav Kanwar and Balu Singh partitioned the land in question and the said partition was attested by the Tehsildar on 05.08.1985 and the land to the extent of 18 Bigha 18 Biswa was recorded in the name of Dariyav Kanwar and 19 Bigha land was mutated in favour of Balu Singh; whereafter, Dariyav Kanwar vide a registered sale deed dated 09.08.1985 sold the land to Smt. Marudhar Kanwar, who in turn sold 18 Bigha 11 Biswa land to Smt. Renu and others and herself got controverted 7 Biswa land. It was also pointed out that in the sale deed executed by Dariyav Kanwar one of the witnesses was her daughter Sohan Kanwar (appellant before District Collector), who not only signed the same as witness but also indicated her no objection to the transfer. It was also pointed out that in the sale deed executed by Dariyav Kanwar one of the witnesses was her daughter Sohan Kanwar (appellant before District Collector), who not only signed the same as witness but also indicated her no objection to the transfer. Based on the above facts, it was alleged that the order dated 25.02.1991 passed by the District Collector, Jodhpur was obtained by suppressing material facts and it was submitted that though appeal was barred by limitation by over 14 years, no application under Section 5 of the Limitation Act was filed, however, the District Collector, Jodhpur has wrongly observed that application under Section 5 of the Limitation Act was decided/allowed separately. Several other pleas were also raised in the appeal. The Additional Divisional Commissioner by his order dated 02.11.1991 partly allowed the appeal while observing that as the appellants before him were entitled for condonation of delay, in the same manner the parties before the District Collector were also entitled for condonation of delay; the Additional Divisional Commissioner came to the conclusion that to the extent of 1/3rd share of Smt. Dariyav Kanwar, petitioners were entitled to get their names mutated, in view of the sale deed executed by Smt. Dariyav Kanwar and upheld the order qua inclusion of names of legal representatives of Sugan Kanwar and Smt. Sohan Kanwar. The petitioners filed revision petitions before the Board of Revenue and raised several pleas including the plea relating to non-filing of the application under Section 5 of the Limitation Act and consequently the order passed being wholly without jurisdiction. The Board of Revenue by its judgment dated 17.10.1996 came to the conclusion that the appeal before the District Collector was barred by limitation and as in para 9 of the appeal the reasons for delay were indicated, in a case where the order passed is incorrect and against fundamental principles, the issue of limitation becomes insignificant and, consequently, dismissed the revision petitions. It is submitted by learned counsel for the petitioners that before the District Collector, the appeal under Section 75 of the Act was filed after 14 years, no application as contemplated under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal was filed by the appellants and, therefore, in terms of Section 3 of the Limitation Act, the District Collector, Jodhpur had no jurisdiction to entertain the appeal and the same was liable to be dismissed. However, the District Collector, by wrongly indicating that application under Section 5 of the Act has been allowed went on to decide the appeal; it was submitted that the fact that no application under Section 5 of the Limitation Act was filed and no order as indicated condoning the delay was passed is fortified from Annexure-10, which is the entire bunch of order-sheets and Annexure-11, which is copying application filed by the petitioner seeking certified copy of application under Section 5 of the Limitation Act and order passed thereon, whereon a specific endorsement has been made that no such application filed and no such order passed and, as such, the order passed by the District Collector being absolutely without jurisdiction cannot be sustained. It is further submitted that the orders passed on appeal by the Additional Divisional Commissioner and the Board of Revenue to the extent of sustaining the order passed by the District Collector are also wholly against the settled position of law and, therefore, the same also deserves to be quashed and set aside. A submission was also made that in view of the conduct of Smt. Sohan Kanwar in signing the sale deed as witness, making specific endorsement thereon according her no objection to the transfer, the entire plea regarding the fact that she was not aware of mutation accepted in the year 1974 is on its face false and on that count also no indulgence should have been granted in their favour, however, the Additional Divisional Commissioner and Board of Revenue did not consider even the said aspects and on that count also these petitions deserve to be allowed. It was also submitted that after transferring in the year 1985 when the appeal against the mutation was filed in the year 1989 the land had already been transferred and the appellants deliberately did not implead the transferees as parties, who are bona fide purchasers of the property and merely by questioning the mutation made in the year 1974, the sale executed in the year 1985 could not be set at naught. Reliance was placed on Damodaran Pillai & Ors. v. South Indian Bank ltd. : AIR 2005 SC 3560 and Sneh Gupta v. Devi Sarup & Ors. : (2009) 6 SCC 194 . Learned counsel for the respondents submitted that there is no reason to disbelieve the statement indicated in the order passed by the District Collector regarding allowing the application and condoning the delay. In any case, averments were made in the appeal explaining the delay and merely because a separate application was not filed, it cannot be said that the appeal was wrongly allowed by the District Collector. It is submitted that admittedly Sugan Kanwar and Sohan Kanwar alongwith Dariyav Kanwar were the legal representatives of deceased Saithan Singh and, therefore, the mutation in the year 1974 could not have been accepted only in favour of Dariyav Kanwar and in that view, the orders passed by the three authorities below do not call for any interference. Reliance was placed on Bhagmal & Ors. v. Kunwar Lal & Ors. : 2010 (4) Civil Court Cases 120 (SC) and Santosh v. Jagat Ram & Anr. : (2010) 3 SCC 251 . I have considered the rival submissions made by learned counsel for the parties. The principal issue which arises for consideration in these writ petitions is as to whether in absence of any application or prayer seeking condonation of delay in filing the appeal and any express order condoning the delay, the appellate/revisional authority can pass orders on merit in the appeal or revision? In the present case, the first appeal against acceptance of mutation dated 13.11.1974 was filed by legal representatives of Smt. Sugan Kanwar and Smt. Sohan Kanwar under Section 75 of the Act around 16.06.1989. In the present case, the first appeal against acceptance of mutation dated 13.11.1974 was filed by legal representatives of Smt. Sugan Kanwar and Smt. Sohan Kanwar under Section 75 of the Act around 16.06.1989. Under Section 78 of the Act the limitation prescribed for filing appeal is 30 days from the date of order to which objection is made and vide Section 87 the provisions of the Limitation Act, 1908 (now Act of 1963) have been applied to all appeals and applications for review under the Act. Hon'ble Supreme Court in Noharlal Verma v. District Cooperative Central Bank Limited, Jagdalpur : (2008) 14 SCC 445 while considering a case where no objection was raised regarding limitation before the authority and the contention was that it was conceded that the application was within time, observed and held as under:- “32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits 33. Sub-section (1) of Section 3 of the Limitation Act, 1963 reads as under: “3. Bar of limitation.--(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.” (emphasis supplied) Bare reading of the aforesaid provision leaves no room for doubt that if a suit is instituted, appeal is preferred or application is made after the prescribed period, it has to be dismissed even though no such plea has been raised or defence has been set up. In other words, even in absence of such plea by the defendant, respondent or opponent, the court or authority must dismiss such suit, appeal or application, if it is satisfied that the suit, appeal or application is barred by limitation.” Similarly in V.M. Salgaocar & Bros. v. Board of Trustees of Port of Mormugao & Anr. : (2005) 4 SCC 613 Hon'ble Supreme Court observed as under:- “20. The mandate of Section 3 of the Limitation Act is that it is the duty of the court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. : (2005) 4 SCC 613 Hon'ble Supreme Court observed as under:- “20. The mandate of Section 3 of the Limitation Act is that it is the duty of the court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex facie barred by the law of limitation, a court has no choice but to dismiss the same even if the defendant intentionally has not raised the pea of limitatoin.” From the principles laid down by Hon'ble Supreme Court and in view of express language of Section 3 of the Limitation Act, it is ex facie clear that in an appeal barred by limitation, condonation of delay is sine qua non for assuming jurisdiction to decide the matter on merits. In the present case, from the endorsement made by the copying section of District Collector, Jodhpur on an application filed by the petitioners seeking certified copy of the application for condonation of delay and order passed thereon, as it was observed in the order passed by the District Collector that application seeking condonation of delay has been allowed by separate order, the following endorsement was made:- ^^Jh eku th] izkFkhZ )kjk pkgh xbZ udy i=koyh esa ns[kh xbZ mDr i=koyh esa izkFkhZ )kjk pkgh xbZ dzekad u- 1 dzekad u- 2 nksuksa gh ugha gSA i=koyh esa ist u- Hkh vafdr gSA ftlesa i=koyh ds lEiw.kZ 1 ls 67 i`”B ns[ks x;s fdUrq izkFkhZ )kjk pkgh xbZ udys ugha gSA vr% nsuk laHko ugha gSA i=koyh voyksdukFkZ lsok esa lknj izLrqr gSA vr% vkns’k gks rks izkFkhZ dks lwfpr fd;k tkosa ,oa izkFkZuk&i= vkKk gks rks QkbZy fd;k tkosaA vkns’kukFkZ j0 v& gksn;** From the above endorsement, it is ex facie clear that alongwith the appeal before the District Collector, Jodhpur no application under Section 5 of the Limitation Act seeking condonation of over 14 years' delay was filed by the appellants-respondents herein. Once it is accepted as a fact that no application seeking condonation of delay was filed before the District Collector and that the appeal was barred by 14 years, it is apparent that the District Collector could not have entertained the appeal on merits and, the narration in the judgment dated 25.02.1991 regarding condonation of delay is contrary to the record. Dealing with a situation of non-filing of application seeking condonation of delay, Hon'ble Supreme Court in Ragho Singh v. Mohan Singh & Ors. : (2001) 9 SCC 717 observed and held as under:- “6. We have heard learned counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs.” Hon'ble Supreme Court in the case of Sayeda Akhtar v.Abdul Ahad : (2003) 7 SCC 52 observed as under:- “6. A bare perusal of the aforementioned provision would clearly go to show that although the court has the jurisdiction to extend the time for depositing the rent both for the period during which the tenant had defaulted as well as the period subsequent thereto but an application is to be made there for. The provision requiring an application to be made is indisputably necessary for the purpose of showing sufficient cause as to why such deposit could not be made within the time granted by the Court. The court does not extend time or condone the delay on mere sympathy. It will exercise its discretion judicially and on a finding of existence of sufficient cause.” In Sneh Gupta (supra) Hon'ble Supreme Court while, inter alia, relying on the case of Sayeda Akhtar (supra) held and observed in para 70 of the judgment as under:- “70. .............Those applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. .............Those applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. (See Dipak Chandra Ruhidas v. Chandan Kumar Sarkar and Sayeda Akhtar v. Abdul Ahad).” From the principles laid down by Hon'ble Supreme Court in the case of Ragho Singh (supra) and Sneh Gupta (supra), it is apparent that in absence of application seeking condonation of delay, the delay cannot be condoned, and in the case of Ragho Singh (supra), where the delay was of 10 days only, for absence of application seeking condonation of delay, the setting aside of concurrent orders passed by all the authorities by the High Court was upheld. However, Hon'ble Supreme Court in the case of Bhagmal (supra) though did not dissent with its earlier judgment in the case of Sneh Gupta (supra) distinguished the same on facts by holding that in the case of Sneh Gupta (supra) the appellant had knowledge of passing of the compromise decree and yet she has not filed the application for condonation of delay, and upheld the decision on merits even in absence of application for condonation of delay. However, it appears that the judgment in the case of Ragho Singh (supra) was not noticed while deciding the case of Bhagmal. Besides the above, as noticed hereinbefore, one of the appellants Sohan Kanwar was signatory to the sale deed dated 09.08.1985 as witness and had appended her no objection as well and filing of the appeal on 16.06.1989 by her claiming ignorance of the 1974 mutation in favour of her mother and uncle was apparently false and baseless. The filing of the appeal in the year 1989 against the mutation entries recorded in the year 1974 and that also without impleading the holder of land in the year 1989 in whose name the mutation entry had already been made in the year 1985 itself clearly indicated mala fides on part of the respondents and the Additional Divisional Commissioner and the Board of Revenue clearly ignored the said vital aspects while ruling about ignoring the aspect of limitation. In view of the above circumstance also, even as per the judgment in the case of Bhag Mal (supra) the reasoning given by Hon'ble Supreme Court for distinguishing the judgment in the case of Sneh Gupta (supra) would apply and the respondents are not entitled to seek any benefit of the said judgment as well. In that view of the matter, in the absence of any application seeking condonation of delay and, more particularly, any order passed by the District Collector condoning the delay, the District Collector had no jurisdiction to entertain the appeal and pass judgment on merits. So far as the consideration by the Additional Divisional Commissioner and the Board of Revenue regarding post facto and assumed condonation of delay by the Collector is concerned, the observations made in absence of any application for condonation of delay and for foregoing reasons are of no avail. Hon'ble Supreme Court in the case of Damodaran Pillai (supra) while considering the requirement of power to condone the delay, held and observed as under:- “14. It is also trite that the civil court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power. 15. It is well-settled that when a power is to be exercised by a civil court under an express provision, the inherent power cannot be taken recourse to. 21. Hardship or injustice may be a relevant consideration in applying the principles of interpretation of statute, but cannot be a ground for extending the period of limitation.” Besides the above, the entire conduct of the respondents in filing the appeal with the delay of 14 years, in the year 1989, without impleading the purchasers of the subject matter in the year 1985, whose names had already been mutated on 25.08.1985 (Annexure-6), the seller Dariyav Kanwar mother of Smt. Sohan Kanwar and Smt. Sugan Kanwar conceding to the appeal and Smt. Sohan Kanwar, who had been a signatory to the sale deed dated 09.08.1985 alongwith her no objection to the transfer, cannot be said to be a bona fide exercise of their right. In view of the above discussion, the appeal filed by the respondents before the District Collector, Jodhpur was not maintainable and the District Collector, Jodhpur was not justified in accepting the appeal on merits despite the same being barred by 14 years and, consequently, the orders passed by the Additional Divisional Commissioner and the Board of Revenue also cannot be sustained. Consequently, the writ petitions filed by the petitioners are allowed. The judgments dated 25.02.1991 passed by the District Collector, Jodhpur, dated 02.11.1991 passed by the Additional Divisional Commissioner, Jodhpur and dated 17.10.1996 passed by the Board of Revenue, Ajmer are set aside and the appeal filed by the respondents before District Collector is dismissed. No order as to costs.