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2019 DIGILAW 1739 (ALL)

Piyush Bhattacharya v. Samaj Sangathan

2019-07-19

VIVEK KUMAR BIRLA

body2019
JUDGMENT : Vivek Kumar Birla, J. 1. Heard Sri Udai Chandani, learned counsel for the petitioners, Sri P.N. Saxena, learned Senior Counsel assisted by Sri Adarsh Kumar, learned counsel for the respondent and Sri Brijesh Ojha, learned counsel appearing for the respondent no. 2. 2. Present petition has been filed for setting aside the order dated 2.2.2019 passed by Additional District and Session Judge, Court No. 10, Varanasi in Mutation Second Appeal No. 2 of 2019, Bhola Nath Bhattacharya and Others vs. Samaj Sangthan and Another, as well as order dated 30.11.2018 passed by Judge Small Causes Court, Varansi in Misc. Mutation Case No. 75 of 2013, Samaj Sangthan vs. Bhola Nath Bhattacharya. 3. The writ petition being Writ Petition No. 3990 of 2018 has been filed for setting aside the order dated 8.9.2017 passed by Additional District Judge, Court No. 14, Varanasi in Mutation Appeal No. 133 of 2014, Samaj Sangathan vs. Nagar Nigam and Others. 4. Both the parties agree that in view of the filing of this leading petition the connected petition has become infructuous. They also agree that in any case decision of leading petition would govern the fate of the connected petition. 5. Before proceeding further it would be appropriate to quote the detailed order passed by this Court on 2.4.2019, which contains necessary facts and the arguments broadly made by learned counsel for the parties at the initial stage. The said order is quoted as under:- “The present application is directed against the order dated 2.2.2019 passed by Additional District and Sessions Judge, Court No. 10, Varanasi in Mutation Second Appeal No. 2 of 2019, invoking jurisdiction under Article 227 of the Constitution of India. The categorical submission of learned counsel for the petitioner is that the appeal under Section 472 of the Municipal Corporation Act, 1959 filed by respondent no. 1 namely Samaj Sangathan through Sanrakshak Dilip Kumar Yadav, son of Satya Narain Yadav against the order dated 6.4.2013 rejecting the complaint filed by Sri Parthjeet Sen Gupta, Pradesh Adhyaksh, Samaj Sangathan, Uttar Pradesh, Varanasi, was not maintainable. The submission is that the respondent no. 1 being a complainant, is an outsider to the proceeding in the matter of mutation of name of the petitioners on the disputed property i.e House No. D-47/236 Ramapura, Varanasi. The submission is that the respondent no. 1 being a complainant, is an outsider to the proceeding in the matter of mutation of name of the petitioners on the disputed property i.e House No. D-47/236 Ramapura, Varanasi. The submission is that the property in dispute admittedly belonged to Yogendra Nath Bagchi, who was original owner and the petitioners/appellants are claiming their right through Pulin Behari Bhattacharya, heir of Yogendra Nath Bagchi, whose name was mutated in the Municipal record as owner of the disputed property as early as on 23.10.1980. In the complaint filed by Parthjeet Sen Gupta dated 11.1.2013, it was sought to be submitted that Sri Pulin Behri Bhattacharya got himself mutated as heir of Yogendra Nath Bagchi by fraudulent manner whereas Sri Pulin Behari Bhattacharya was one of the tenants of house in question alongwith another person named as Sri Satya Narain Yadav. The complaint dated 11.1.2013 was rejected vide order dated 6.4.2013 passed by the competent authority namely, Nagar Ayukt, Nagar Palika, Varanasi with the observation that before mutation of name of Pulin Behari Bhattacharya, notice under section 213 of U.P. Municipal Corporation Act, 1959 had been issued and no objections were received to the said notice. It was simultaneously recorded therein that the complainant had failed to file any document or material to establish that Sri Pulin Behari Bhattacharya son of late Syama Charan Bhattacharya was not the heir of Yogendra Nath Bagchi, admitted original owner of the disputed property. It is submitted by learned counsel for the petitioner that the Mutation Appeal No. 75 of 2013 has been filed by son of another tenant namely, Sri Satya Narain Yadav claiming him as Patron of Samaj Sangthan, Uttar Pradesh, i.e the respondent no. 1. The submission is that the complaint was filed by Parthjeet Sen Gupta claiming himself to be the President of the Sanghthan whereas, the appeal has been filed by a person, who has no concern with the said Sanghthan. Moreover, the appeal is sought to be entertained on the alleged certificate dated 9.4.2013 given by Parthjeet Sen Gupta to certify that Mr. Dilip Kumar Yadav is a member of NGO, namely Samaj Sangathan, Uttar Pradesh as a Patron and has been working as such for a longtime. Moreover, the appeal is sought to be entertained on the alleged certificate dated 9.4.2013 given by Parthjeet Sen Gupta to certify that Mr. Dilip Kumar Yadav is a member of NGO, namely Samaj Sangathan, Uttar Pradesh as a Patron and has been working as such for a longtime. Further submission is that it has not been demonstrated by Sri Dilip Kumar Yadav who had filed appeal under section 472 of Municipal Corporation Act, namely Mutation Appeal No. 75 of 2013 that he was authorized to file the said appeal by any resolution passed by the alleged Sanghthan. On a pointed query made by the Court, learned counsel for the respondent no. 1 is not in a position to intimate the Court as to with what right or capacity, Mutation Appeal No. 75 of 2013 has been filed by respondent no. 1. The status of respondent no. 1 i.e as to whether it is registered Organization or not, is not known. It is alleged that Dilip Kumar Yadav is son of the tenant Satya Narain Yadav and all proceedings are instituted at his instance. Moreover, the complainant or respondent no. 1 had no right to maintain the complaint or the Mutation Appeal under section 472 of the Municipal Corporation Act' 1959. Learned counsel for the respondent no. 1 prays for and is granted ten days time to complete his instructions and file a short counter affidavit bringing on record the copy of the registration certificate of the Organization, who has filed the complaint dated 11.1.2013. List of the office bearers and members of said Organization, if any, registered in office of the Registrar for the year 2012-13 and onwards i.e upto the date, shall also be placed before the court, the resolution of Organization to depute the appellant namely Sri Dilip Kumar Yadav son of Satya Narain Yadav to file appeal on behalf of the Sanghthan, challenging the order dated 6.4.2013, shall also be filed along with said affidavit. The copy of the complaint dated 11.1.2013 filed by Parthjeet Sen Gupta, Pradesh Adhyaksh Samaj Sanghthan U.P. be also placed on record. The memorandum of Association and bye-laws of the Organization so as to demonstrate the activities of the said Organization shall also be brought on record. The copy of the complaint dated 11.1.2013 filed by Parthjeet Sen Gupta, Pradesh Adhyaksh Samaj Sanghthan U.P. be also placed on record. The memorandum of Association and bye-laws of the Organization so as to demonstrate the activities of the said Organization shall also be brought on record. In the opinion of the Court these documents are necessary, to be examined by the court so as to know the actual motive of the complaint and appellant namely, respondent no. 1 and to examine whether respondent no. 1 can maintain mutation appeal under Section 472 of the Municipal Corporation Act 1959. As prayed, put up this matter on 12.4.2019 as fresh.” 6. Case of the petitioner is that the owner of the property bearing H. No. D-47/236, Ramapura, Varanasi was one Sri Yogendra Nath Bagchi, who was having only one daughter namely Chandra Kala Devi, who was married to Shyama Charan Bhattacharya and out of the said wedlock father of the petitioners was born, namely, late Pulin Behari Bhattacharya. Father of the petitioners preferred mutation application after death of his father and mother and on 23.10.1980 in place of Yogendra Nath Bagchi the name of Pulin Behari Bhattacharya was recorded in the revenue record. Father of the petitioners died on 20.10.2012 leaving behind petitioners as legal heirs. After his death the petitioners preferred mutation application before the office of Nagar Ayukt, Nagar Nigam, Varanasi and an objection was preferred by one Sri Parthjeet Sen Gupta, President of Samaj Sangathan with the pleading that there are two tenant in the property in question, namely, Satya Narain Yadav and Pulin Behari Bhattacharya and by playing fraud he got his name mutated in place of Yogendra Nath Bagchi showing himself as his heirs. Thereafter, Nagar Ayukt, Varanasi by a detailed order dated 6.4.2013 dismissed the objection and a categorical finding was recorded that Parthjeet Sen Gupta was unable to establish that the petitioners are not the legal heirs of Pulin Behari Bhattacharya and Yogendra Nath Bagchi. Thereafter, Nagar Ayukt, Varanasi by a detailed order dated 6.4.2013 dismissed the objection and a categorical finding was recorded that Parthjeet Sen Gupta was unable to establish that the petitioners are not the legal heirs of Pulin Behari Bhattacharya and Yogendra Nath Bagchi. Thereafter, in a very arbitrary and illegal manner the respondent who was not even a party to Mutation Case No. D-1015/12/M as well as Mutation Case No. D-973/12/M and neither he filed any objection to the mutation application preferred by the petitioners before the Nagar Ayukt, straightway preferred a mutation appeal against the order dated 6.4.2013 before the Judge Small Causes Court, which was registered as Mutation Appeal No. 75 of 2013 bearing paper no. 4-Ga. Alongwith memo of appeal the respondent also filed a delay condonation application supported with affidavit bearing paper no. 5-Ga and 6-Ga in which it was prayed before the learned appellate court to condone the delay and recall the order dated 6.4.2013 as well as 23.10.1980. The petitioners preferred objection supported with affidavit bearing paper no. 16-Ga and 17-Ga to the delay condonation application preferred by the respondent and prayed before the learned appellate court to dismiss the mutation appeal preferred by the respondent on the ground of laches as the order which has been challenged is of 23.10.1980 and 6.4.2013. The respondent filed replication on frivolous and vexatious grounds to the objection preferred by the petitioners without there being any material evidence to demonstrate any illegality relating to mutation of the name of the petitioners. It is alleged that the respondent as well as Parthjeet Sen Gupta are hand in gloves as the respondent is the Patron of the N.G.O. namely Samaj Sangathan and Parthjeet Sen Gupta is the President of the said Sangathan and the said fact will be quite clear from the bare perusal of the letter dated 9.4.2013 on the letter pad of the Sangathan. On 22.8.2014 the mutation appeal no. 75 of 2013 was dismissed with cost of Rs. 5,000/- by the learned Judge Small Causes Court in which a categorical finding has been recorded that the respondent has preferred the present petition against the order dated 23.10.1980 i.e. about after 33 years and the same is unexplained by the respondent, therefore, the delay cannot be condoned by the learned court and hence the delay condonation application was dismissed with cost of Rs. 5,000/-. 5,000/-. Against the order dated 22.8.2014 second appeal no. 133 of 2014 was preferred by the respondent before the District Judge, Varanasi supported with affidavit bearing paper no. 4-Ka and 6-Ka. The petitioners preferred an objection in the second appeal in which categorical assertions were brought on record. The respondent filed replication on untenable grounds without explaining the delay to the objection preferred by the petitioners on 6.10.2015. In between an amendment application was filed by the respondent on 5.5.2016 with the prayer to incorporate father of the respondent namely Satya Narain as a party as he was the tenant of the property in question. The petitioners strongly objected to the amendment application and has specifically stated that in the mutation case there is no requirement of impleading any party who has no concerned relating to the property in question as the same is a summary proceeding. The petitioners also brought on record before the learned appellate court the copy of the judgment dated 24.9.2015 passed by this Hon'ble Court by means of an affidavit to demonstrate the fact that the father of the petitioners was the owner of the property in question and the father of the respondent was evicted from the same in compliance of the order passed by this Hon'ble Court. The amendment application of the respondent was dismissed by the learned court below by a detailed and reasoned order. The court below without appreciating the material evidence on record relating to delay of 33 years set aside the order dated 22.8.2014 and remanded back the matter before the learned court below for again consider the issue of delay at the earliest. The petitioner preferred Writ Petition No. 3990 of 2018 challenging the order dated 8.9.2017 passed by Additional District Judge, Court No. 14, Varanasi in Mutation Appeal No. 133 of 2014. Thereafter, during pendency of the aforesaid petition the Judge Small Causes Court heard the parties and allowed the application under Section 5 of the Limitation Act vide order dated 30.11.2018. Against the order dated 30.11.2018 the petitioners filed detailed Mutation Appeal No. 2 of 2019. The mutation appeal preferred by the petitioners was dismissed vide order dated 2.2.2019 without recording any finding relating to the submissions and grounds raised by the petitioners. 7. Against the order dated 30.11.2018 the petitioners filed detailed Mutation Appeal No. 2 of 2019. The mutation appeal preferred by the petitioners was dismissed vide order dated 2.2.2019 without recording any finding relating to the submissions and grounds raised by the petitioners. 7. Submission is that both the courts below committed manifest error of law in deciding the title by exceeding the jurisdiction vested under law and allowing the delay condonation application against the provision contained under the Limitation Act, the orders passed by the court below are in utter disregard of the judgment pronounced by the Hon'ble High Court as well as by the Hon'ble Apex Court relating to the ground of limitation; learned court below committed manifest error of law while passing the order dated 8.9.2017 as in the second appeal the order dated 6.4.2013 and 21.5.2013 was never challenged and ignoring the said fact as well as the other material evidence the impugned order has been passed; there is violation of the provisions of Section 213 of U.P. Municipal Corporation Act, 1959 by the respondents and the court below ignoring the said fact passed the impugned order which is unjustified and illegal; the fact remains that against the order passed by the Hon'ble High Court the respondent preferred S.L.P. before the Hon'ble Supreme Court which was dismissed and the respondent vacated the premises belonging to the petitioners in compliance of the order passed by the Hon'ble High Court; the delay in filing the appeal as well as the objection has not been established by the respondent from any documents whatsoever; bare perusal of the amendment application would disclose that the respondents have admitted the fact that his father was the tenant of the property in question and was evicted by the order of a competent court from the disputed property of whom the owners are the petitioners; the names of the petitioners were duly mutated in the Nagar Nigam register and the same is in existence till today; the petitioners are having the peaceful possession and title on the property in question till today; there is an inordinate delay of more than 36 years which has not been explained by the respondent in challenging the order of mutation; no evidence whatsoever has been brought by the respondents to demonstrate that the petitioners are not the legal heirs of Yogendra Nath Bagchi and Pulin Behari Bhattacharya and the appeal preferred by the respondent is not maintainable from the very inception as the objection before the Nagar Ayukt was preferred by Parthjeet Sen Gupta and not by Dilip S/o Satya Narain as is evident from the material evidence on record and hence he has no locus to challenge the order as he has no right, title or interest in the property. 8. Learned counsel for the petitioner has placed reliance on judgments in the cases of Smt. Nirmala Devi and Others vs. Upper Commissioner, Nagar Nigam, Allahabad, 2011 (8) ADJ 385 , Kanhaiya Lal and Others vs. District Deputy Director of Consolidation, Pratapgarh and Others, 1974 All LJ 552, Gauhar Ali vs. Municipal Corporation, Malviya Road, Raipur (C.G.) 2017 (1) CGLJ 77 , Moti Ram vs. Shiv Saran, 2003 (1) JKJ 801, Girraj Prasad vs. State of Rajasthan and Others, 2013 (3) WLC 526 , State of Nagaland vs. Lipok AO and Others, AIR 2005 SC 2191 , Sohan vs. Abdul Hameed Khan, AIR 1976 All 159 , Oriental Aroma Chemical Industries Ltd. vs. Gujarat Industrial Development Corporation and Another, 2010 (5) SCC 459 , Pundik Jalam Patil (D) by LRs. vs. Ex. En. Jalgaon Medium Progject and Another, 2008 (6) All MR 954, State of U.P. vs. Dhampur Sugar Mills Ltd. 2013 (98) ALR 434, Adi Pherozshah Gandhi vs. H.M. Seervai, Advocate General of Maharashtra, 1971 AIR (SC) 385, Hari Shankar Kushwaha and Others vs. State of U.P. through Secretary Revenue Department, Lucknow and Others, 2019 (139) RD 521, Collector, Land Acquisition, Anantnag and Another vs. Mst. Katiji and Others, 1987 AIR (SC) 1353, Ram Kumar Goyel and Others vs. Bhuwan Singh Pradhan, AIR 2007 Sik 39, Mahesh Yadav and Another vs. Rajeshwar Singh and Others, 2009 AIR (SCW) 218 and B.R. Mallikarjuna vs. Smt. D. Geetha, 2016 (2) ICC 24. 9. According to the respondent, both the petitions have arisen on account of grabbing of public property by committing fraud. The dispute relates to House No. D-47/236 Ramapura, Varanasi whose real owner was Yogendra Nath Bagchi who died intestate on 1.3.1990. This house was purchased by the said Yogendra Nath Bagchi on 2.2.1938 in an auction sale. Father of the petitioners late Pulin Behari Bhattacharya was tenant in the house in dispute hence, Pulin Behari Bhattacharya without consent or knowledge of Yogendra Nath Bagchi moved an application dated 18.4.1980 without annexing any death certificate of Yogendra Nath Bagchi alleging that he died in the year 1929 in Chatgaon and claiming himself to be the son of one Chandra Kala Devi, who had also died in the year 1953 in Chatgaon without any proof or succession certificate and death certificate got his name mutated in a collusive manner as owner of House No. D-47/236, Ramapura, Varanasi. When this fact came to the knowledge of fraudulent grabbing of property by late Pulin Behari Bhattacharya, Sri Parth Sen Gupta, President of Samaj Sangathan moved a complaint disclosing the fraudulent grabbing of public property by late Pulin Behari Bhattacharya to ADM City, Varanasi for fraudulent mutation. The above complaint was investigated by the Additional City Magistrate, Varanasi and finding fraud in the matter referred the complaint for an enquiry regarding the fraudulent succession of late Pulin Behari Bhattacharya to Municipal Commissioner, Varanasi by its Administrative Order dated 17.1.2013. The Municipal Commissioner, Varanasi rejected the complaint by its Administrative Order dated 6.4.2013. 10. Crux of the submissions of learned counsel for the respondents is that hence, both the petitions arisen out of mutation proceedings by fraudulently grabbing property by late Pulin Behari Bhattacharya and for the reason highlighted above the property in dispute devolve upon the heirs of true owners and in absence of any heir to succeed it will vest in the state and hence, it is a case of grabbing of public property by fraudulent means. 11. Learned counsel for the respondent has placed reliance on judgments in the cases of A.A. Gopalakrishnan vs. Cochin Devaswom Board and Others, 2007 (7) SCC 482 , A.V. Papayya Sastry and Others vs. Govt. of A.P. and Others, 2007 (4) SCC 221 , State of A.P. and Another vs. T. Suryachandra Rao, 2005 (6) SCC 149 , Ram Chandra Singh vs. Savitri Devi and Others, 2003 (8) SCC 319 , Indian Bank vs. Satyam Fibres (India) Pvt. Ltd. 1996 (5) SCC 550 , S.P. Chengal Varaya Naidu (dead) by LRs. vs. Jagannath (dead) by LRs. and Others, 1994 (1) SCC 1 and Raj Kumar Bhatia vs. Subhash Chander Bhatia, 2018 (2) SCC 87 . 12. I have considered the rival submissions and have perused the record. 13. Before proceeding further, from the case of the respondents, it is, therefore, clear that the respondents is not claiming any right or title over the property in question and only claim is that the petitioners are grabbing the public property by playing fraud. 14. It is not in dispute that names of the petitioners have already been mutated in the municipal records. It is also not in dispute that present proceedings are arising out of the mutation proceedings in respect of house no. D-47/236 Ramapura, Varanasi. 14. It is not in dispute that names of the petitioners have already been mutated in the municipal records. It is also not in dispute that present proceedings are arising out of the mutation proceedings in respect of house no. D-47/236 Ramapura, Varanasi. It is not in dispute that initially one Yogendra Nath Bagchi was the owner of the house in question. Father of the petitioner Pulin Behari Bhattacharya S/o late Shyama Charan Bhattacharya sought mutation of the house in question in his favour claiming that daughter of Yogendra Nath Bagchi, namely, Chandrakali Devi was his mother. He is claiming that Yogendra Nath Bagchi died in Chittagong (now in Bangladesh) in the year 1929 and Chandrakali Devi, his mother died in 1953 and his father Shyama Charan Bhattacharya died in 1932. Thereafter, he applied for mutation of the house in question in his favour on which a notice dated 10.09.1980 under Section 213 of the Act was issued to which no objection was filed by anyone and thereafter the name of Pulin Behari Bhattacharya, father of the petitioners was mutated on 23.10.1980. Pulin Behari Bhattacharya died on 20.10.2012. Thereafter, the petitioners applied for mutation in their name on the basis of registered Will executed by their father Pulin Behari Bhattacharya. On this mutation application dated 30.01.2013 notice under Section 213 of the Act was issued but was suspended as a dispute was raised by complainant Parthjeet Sen Gupta claiming himself to be the Adhyaksha of Samaj Sangathan Uttar Pradesh. A complaint was filed on the ground that in the house in question there were two tenants one is Satya Narayan Yadav and another is Pulin Behari Bhattacharya, father of the petitioners but by playing fraud claiming himself to be the legal heir of Yogendra Nath Bagchi, late Pulin Behari Bhattacharya got his name mutated. It is because of this complaint the mutation proceedings initiated on the application submitted by the petitioner were stayed. This complaint was decided and rejected by the Nagar Ayukt vide order dated 06.04.2013. In this order it was found by the Nagar Ayukt that a due notice was given under Section 213 of the Act before mutating the name of Pulin Behari Bhattacharya and, therefore, there is no illegality in the order of mutation dated 30.10.1980 hence, the complaint was rejected. In this order it was found by the Nagar Ayukt that a due notice was given under Section 213 of the Act before mutating the name of Pulin Behari Bhattacharya and, therefore, there is no illegality in the order of mutation dated 30.10.1980 hence, the complaint was rejected. It is pertinent to note that earlier complaint was filed by Parthjeet Sen Gupta claiming himself to be the Adhyaksha of one Organization, namely, Samaj Sangathan Uttar Pradesh, however, the Mutation Appeal No. 75 of 2013 was filed by Samaj Sangathan Uttar Pradesh through its Sanrakshak (patron) Dilip Kumar. The memo of appeal filed under Section 472 of the Nagar Nigam Adhiniyam is Annexure-3 of the petition. A perusal of page 35 of the appeal disclosed that the name of father of Dilip Kumar, who claims himself to be the Sanrakshak of the organization has not been disclose. A perusal of the memo of appeal further reflects that it has not been disclosed in the appeal that father of Dilip Kumar was infact Satya Narayan Yadav who was admittedly a tenant in the house in question. This appeal was filed with a delay condonation application. This fact becomes important inasmuch as there had been a litigation between Pulin Behari Bhattacharya and Satya Narayan Yadav and ultimately Writ Appeal No. 25254 of 1991, Pulin Behari Bhattacharya vs. ADJ and Others, wherein Satya Narayan Yadav was admittedly respondent no. 3 as reflected from perusal of Annexure-14 to the petition, which is a judgment passed by this Court on 24.09.2015 in the aforesaid case setting aside the order dated 23.8.1991 passed by 8th Additional District Judge, Varanasi in Revision No. 50 of 1990, Satya Narayan Yadav and Another vs. Additional District Judge (Civil Supply)/Rent Control and Eviction Officer, Collectorate, Varanasi. The writ petition was allowed and the release order in favour of the petitioner dated 25.05.1988 was restored. Thus, status of father of Dileep Kumar Yadav (respondent) is clear as a tenant of the house in question. In this respect it is also pertinent to note that Annexure-12 is an application filed under Order 6 Rule 17 C.P.C. filed by Dilip Kumar Yadav in Second Appeal No. 133 of 2014, whereby he was seeking impleadment of his father Satya Narayan Yadav as appellant no. In this respect it is also pertinent to note that Annexure-12 is an application filed under Order 6 Rule 17 C.P.C. filed by Dilip Kumar Yadav in Second Appeal No. 133 of 2014, whereby he was seeking impleadment of his father Satya Narayan Yadav as appellant no. 2 and a paragraph was also sought to be added and that Satya Narayan Yadav was tenant in the house in question. It is also important to note that in paragraph 5 of the said affidavit at page 88 of the paper book it has been stated that when Satya Narayan Yadav came to know about the appeal Satya Narayan Yadav expressed his desire to implead as party in the litigation by stating that father of the petitioners was also tenant in the house in question and use to collect rent from him on behalf of Yogendra Nath Bagchi. Thus, it becomes an admitted fact that father of Dilip Kumar (i.e. Satya Narayan Yadav), who now claims to be patron of the alleged Samaj Sangathan Uttar Pradesh, admits that Pulin Behari Bhattacharya used to collect rent. It is, although, being claimed that rent was being collected on behalf of the landlord by another tenant (i.e. Pulin Behari Bhattacharya). It may also be noticed that this application filed by Dilip Kumar under Order 6 Rule 17 CPC was rejected vider order dated 20.02.2017 (Annexure 15 to the writ petition). It is, therefore, clear that one organization namely Samaj Sangathan Uttar Pradesh, which, from perusal of the record annexed with the supplementary counter affidavit, is a society allegedly registered under the Societies Registration Act. Section 5 application filed along with the case by the contesting respondent was rejected by the Judge Small Causes Court vide order dated 22.08.2014 clearly holding therein that the application was given after about 33 years by Samaj Sangathan (a registered society) on the ground that the order was not known to the Sangthan. The locus of the Samaj Sangthan was not at all established or clarified. The application was dismissed with a cost of Rs. 5,000. It may be noticed that initially some other person has come forward to file the complaint after 33 years and now son of the earlier tenant Satya Narayan Yadav, namely, Dilip Kumar, who claims to be patron of the Samaj Sangathan further took up the matter and filed the aforesaid appeal. 5,000. It may be noticed that initially some other person has come forward to file the complaint after 33 years and now son of the earlier tenant Satya Narayan Yadav, namely, Dilip Kumar, who claims to be patron of the Samaj Sangathan further took up the matter and filed the aforesaid appeal. At the cost of repetition, it is pertinent to note that Satya Narayan Yadav, father of Dilip Kumar, who is pursuing these proceedings as per petitioners, had lost his case upto the Apex Court and the release order passed in favour of late father of the present petitioners dated 25.05.1988 was restored. The matter was further carried by the contesting respondent by filing Mutation Appeal No. 133 of 2014 challenging the order dated 22.08.2014 passed by the Judge Small Causes Court rejecting Section 5 of the Limitation Act as noticed above. The Second Appeal was allowed vide order dated 8.9.2017 setting aside the order dated 22.8.2014 passed by the Additional District Judge and the matter was remanded back to the lower court to decide Section 5 application afresh. This order was challenged by the petitioner by filing Writ Petition No. 3990 of 2018 before this court which is still pending, however, during pendency of the aforesaid petition the Judge Small Causes Court decided the application under Section 5 of the Limitation Act and allowed the same in the light of the directions given by the second appellate court vide order dated 30.11.2018. Against the same the petitioner preferred Second Appeal No. 02 of 2019 the same was rejected by the lower second appellate court on the ground that at this stage locus or maintainability of the appeal is not to be seen and this is to be considered only after hearing the appeal on merits. 15. At this stage it would also be relevant to note that vide order dated 02.04.2019 this court permitted the learned counsel for the respondent no. 1 to file a short counter affidavit bringing on record a copy of the registration certificate of the Organization, list of office bearers and members of the said Organization upto the date and resolution of the Organization to depute appellant, namely, Dilip Kumar Yadav S/o Satya Narayan Yadav to file appeal on behalf of the Samaj Sangthan challenging the order dated 06.08.2013. Memorandum of association and bye-laws of the Organization were also directed to be brought on record to demonstrate the activities of the said Organization for the purpose of examining the actual motive of the complaint and the appellant, namely, respondent no. 1 and to examine whether respondent no. 1 can maintain mutation appeal under Section 472 of the Municipal Corporation Act, 1959. A perusal of the documents annexed with the supplementary counter affidavit indicates that on request made by Dilip Kumar Yadav on the letterhead of Samaj Sangathan Uttar Pradesh, written to the Mahanagar Adhyaksha/ Upadhyaksha of Samaj Sangathan Uttar Pradesh Varanasi on the ground that he is aware of the facts of the case, therefore, he may be granted permission to look after the case, this permission was allegedly granted by Mahanagar Adhyaksha Samaj Sangthan U.P. signed by Mahanagar Upadhyaksha on 15.04.2013. This is clearly not a resolution passed by the registered society Samaj Sangathan and a perusal of Annexure-5 to the supplementary counter affidavit further indicates that the society was formed for educational purposes. It was constituted with the object of helping physically challenged person in education to make them self-dependent and to provide them vocational training. Further object is to help the helpless persons and widows by providing job oriented training and another object was to make the educated unemployed youth to do the educational work. Thus, the complaint that has been filed is not directed towards any of the objects to be achieved by the society. Further, as directed by this court the current status of organization activities and current list of members has not been annexed and document annexed as Annexure-5 to the supplementary counter affidavit is dated 24.09.1994. The alleged complaint annexed as Annexure-4 to the supplementary counter affidavit has been written by Parthjeet Sen Gupta, Upadhyaksha of the society on his letterhead and the resolution of the society for filing of such compliant on behalf of the organization has not been placed on record. Thus, the documents placed on record by respondent no. 1 in support of his case do not inspire confidence and do not prove the locus of Dilip Kumar Yadav as according to Annexure-3 to the supplementary counter affidavit the object of looking after the case by Dilip Kumar Yadav is that his father was tenant in the house in question and he is aware of the facts. 1 in support of his case do not inspire confidence and do not prove the locus of Dilip Kumar Yadav as according to Annexure-3 to the supplementary counter affidavit the object of looking after the case by Dilip Kumar Yadav is that his father was tenant in the house in question and he is aware of the facts. The aforesaid facts clearly proved that petitioner was aware of the facts regarding status of his father as tenant in the house in question. He himself has stated that Pulin Behari Bhattacharya used to collect rent of the house in question on behalf of Yogendra Nath Bagchi from Satya Narayan Yadav, who was tenant in the house in question though it has been claimed that he is used to collect rent on behalf of the earlier owner Yogendra Nath Bagchi. In this background of the case it is clear that the assertion made by respondent no. 1 and stated on affidavit by Dilip Kumar that prior to 08.05.2013 he was not aware of the order of mutation in favour of Pulin Behari Bhattacharya dated 23.10.1980 is patently false. 16. In such view of the matter I find that the Judge Small Causes Court rightly rejected the application under Section 5 of the Limitation Act filed by respondent no. 1 vide order dated 22.08.2014 by imposing cost. 17. I have gone through the judgments placed before this court by both the parties and there is no quarrel with law, therefore, I am not inclined to deal with each and every citation separately. 18. No doubt, it is the sufficiency of the cause and not the number of the days, which is, prima-facie, material for the purpose of consideration of an application under Section 5 of the Limitation Act, however, once there is an inordinate delay, which in the present case is of 33 years, and it is found that the application has been moved by a third person, who himself is not at all claiming any right, title or interest of property in question, he cannot be lightly permitted to drag other person in frivolous litigation on the ground that all such facts, without consideration of which the case cannot proceed, cannot be seen at the stage of consideration of Section 5 of the application. 19. 19. It cannot be denied that the ultimate aim of the present litigation initiated by the contesting respondent no. 1 is to unsettle the mutation entry dated 23.10.1980, whereby in place of Yogendra Nath Bagchi name of Pulin Behari Bhattacharya, father of the petitioners, was recorded. It also cannot be disputed that without claiming any right, title or interest in the property the contesting respondent is trying to dispute the title of the petitioners in mutation proceedings, which are summary in nature. The relationship of Dileep Kumar Yadav with Satya Narayan Yadav (admittedly tenant in the house in question and who had admittedly lost upto this Court against Pulin Behari Bhattacharya) as son and father is also relevant in the present case. 20. In Collector, Land Acquisition, Anantnag vs. Mst. Katiji (supra) it was observed by the Hon'ble Apex Court that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. Here is a delay of about 33 years in attacking the mutation proceedings concluded in the year 1980 in accordance with law. It is a case of inordinate delay. 21. In Vedabai @ Vaijayanatabai Baburao vs. Shantaram Baburao Patil and Others, JT 2001 (5) SC 608, it was observed that a distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. In the former case consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach. It was also observed that no hard and fast rule can be laid down in this regard and the basic guiding factor is advancement of substantial justice. 22. In Pundlik Jalam Patil (supra) the Hon'ble Apex Court observed that statutes of limitation are sometimes described as statutes of peace. It was further observed that an unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This observation was made on the law already settled by the Hon'ble Apex Court. It may also be relevant to observe that even such claim for condonation of delay/limitation can be claimed by the person, who is the person aggrieved. 23. In the present case the contesting respondent no. This observation was made on the law already settled by the Hon'ble Apex Court. It may also be relevant to observe that even such claim for condonation of delay/limitation can be claimed by the person, who is the person aggrieved. 23. In the present case the contesting respondent no. 1 is not claiming any right, title or interest in the property and his claim is that the petitioners are grabbing public property by playing fraud. This is being claimed by Dileep Kumar Yadav as patron of the respondent no. 1, whereas his father, as tenant, has lost the litigation upto this Court and the release order of the year 1980 was restored in favour of the Pulin Behari Bhattacharya as landlord and the same was never challenged. Thus, even for the purpose of consideration of an application filed under Section 5 of the Limitation Act it has to be seen as to whether the person initiating litigation after such a long gap after 33 years is a person aggrieved or not, that too, by initiating proceedings in the name of registered society by challenging title of the petitioners in mutation proceedings, which are summary in nature, on the ground of fraud. 24. In State of Nagaland (supra) it was observed that if the refusal to condone the delay results in grave miscarriage of justice it would be a ground to condone the delay. In the present case, dragging the petitioners to contest the case, defending the mutation entries carried about 33 years back in the year 1980 now on a complaint/application challenging the title of the father of the petitioners in summary proceedings, would amount to miscarriage of justice. 25. It may also be noted that in all the rulings that have been relied on by learned counsel for the parties are related to a case where the agitating party, subject to correction, is claiming right, title or interest in the property in question. This is not so in the present case. Further, the judgments that have been relied on by learned counsel for the respondents are relating to fraud and was under challenge by the parties concerned and not by any stranger, and subject to correction, that too, were carried and agitated on the regular side of common civil law of the litigation and not in summary proceeding like mutation. 26. Further, the judgments that have been relied on by learned counsel for the respondents are relating to fraud and was under challenge by the parties concerned and not by any stranger, and subject to correction, that too, were carried and agitated on the regular side of common civil law of the litigation and not in summary proceeding like mutation. 26. There is yet another aspect of the matter which is required to be taken note of is that it is well settled that mutation proceedings do not confer any title. It is always open to the aggrieved person to seek declaration in a court of law. Admittedly, as already noticed the contesting respondent no. 1 is not claiming any right, title or interest in the property in question. His only claim is that the petitioners are grabbing the public property by playing fraud. Needless to point out that mutation proceedings are summary in nature, whereas the question of fraud is a question of fact that has to be proved by leading evidence and any such allegation can be seen under the common civil law which prevail on all other such proceedings. Thus, challenge to mutation proceedings on the ground of fraud, has to be taken into account moreso when the mutation entries were in existence for last more than 33 years. 27. In such view of the matter, I find that the learned District Judge committed a mistake in remanding back the matter to the trial court on the ground that the locus or maintainability of the appeal would be seen subsequently and cannot be seen at the time of consideration of the application under Section 5 of the Limitation Act. A perusal of the order passed by the lower court further reflects that it is because of the direction of the lower second appellate court the application under Section 5 of the Limitation Act has been allowed. 28. For the discussions made hereinabove I find that the orders impugned herein are not sustainable in the eye of law and are liable to be set aside. 29. Accordingly, the present petition stands allowed. The impugned orders dated 2.2.2019 and 30.11.2018 are hereby set aside. 28. For the discussions made hereinabove I find that the orders impugned herein are not sustainable in the eye of law and are liable to be set aside. 29. Accordingly, the present petition stands allowed. The impugned orders dated 2.2.2019 and 30.11.2018 are hereby set aside. The order dated 22.08.2014 rejecting the application under Section 5 of the Limitation Act by the Judge Small Causes Court in Miscellaneous Case No. 75 of 2013, Samaj Sangathan Uttar Pradesh vs. Nagar Nigam and Others, is restored and affirmed. 30. For the discussions made hereinabove and the decision taken, the connected petition stands dismissed as infructuous.