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2019 DIGILAW 2419 (RAJ)

Padam Singh v. Board of Revenue

2019-09-11

SANGEET LODHA

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JUDGMENT : Sangeet Lodha, J. This petition is directed against order dated 15.4.19 passed by the Board of Revenue Rajasthan, whereby a second appeal preferred by the petitioners against the order dated 7.6.13 passed by the Additional Divisional Commissioner, Jodhpur, setting aside the order dated 8.7.78 passed by the Assistant Land Record Officer, has been allowed and accordingly, order dated 8.7.78, recording the factum of partition of the land in the revenue record has been restored. 2. The facts relevant are that the land comprising Khasra No.94 min, present Khasra No.142 measuring 23 bighas 5 biswa, Khasra No.490 present Khasra No.144 measuring 8 bighas 8 biswa, Khasra No.94/1 present Khasra No.143 measuring 7 biswa, Khasra No.488 present Khasra No.944 measuring 10 bighas 17 biswa, Khasra No.491 present Khasra No.939 measuring 3 biswa, Khasra No.490 min present Khasra No.941/1017 measuring 4 biswa situated in Village-Pilowani, Tehsil-Desuri, District-Pali, was joint khatedari land of Madan Singh s/o Maan Singh, Nenu Ram s/o Maan Singh, having 1/2 share each. In Samvat 2035, with the consent of joint khatedars Madan Singh and Nenu Ram, who were brothers, as per oral partition between them, the lands in their cultivatory possession were ordered to be recorded in their names vide order dated 8.7.78 passed by the Assistant Land Record Officer. 3. After a lapse of about 33 years, the legal heirs of Nenu Ram preferred an appeal under Section 75 of the Rajasthan Land Revenue Act, 1956 ('the Act of 1956'), accompanied by an application under Section 5 of the Limitation Act, before the Additional Divisional Commissioner, Jodhpur, questioning the entries made in Khasra Revision (Relating to Partition) contending that Assistant Land Record Officer has no jurisdiction to accept the partition and enter the entries in the revenue record in this regard. It was contended that the entries as aforesaid were made without consent and thus, the order impugned being void, the appeal cannot be considered to be barred by limitation. 4. The Additional Divisional Commissioner opined that the order passed by the Assistant Land Record Officer acting without jurisdiction is void. Accordingly, the order dated 8.7.78 passed by the Assistant Land Record Officer was set aside by the Additional Divisional Commissioner vide order 7.6.13. 5. Aggrieved by the order dated 7.6.13, the respondents no.6 & 7 herein preferred second appeal before the Board of Revenue. Accordingly, the order dated 8.7.78 passed by the Assistant Land Record Officer was set aside by the Additional Divisional Commissioner vide order 7.6.13. 5. Aggrieved by the order dated 7.6.13, the respondents no.6 & 7 herein preferred second appeal before the Board of Revenue. The Board of Revenue observed that the partition effected entered in the revenue record was never questioned by Madan Singh and Nenu Ram during their life time and thus, after their death the challenge to the same by legal heirs belatedly could not have been entertained by the Appellate Authority. Accordingly, the second appeal preferred by the respondents no.6 & 7 has been allowed. Hence, this petition. 6. Learned counsel appearing for the petitioners contended that considering the merit of the dispute raised, the question with regard to inordinate delay in filing the appeal was not considered fatal by the Additional Divisional Commissioner and thus, the order passed on merits could not have been set aside by the Board of Revenue in perfunctory manner. Learned counsel submitted that the order dated 8.7.78 passed by the Assistant Land Record Officer acting without jurisdiction, is void and thus, cannot be given effect to. Learned counsel submitted that the order passed by the Assistant Land Record Officer without giving an opportunity of hearing to the petitioners is violative of principle of natural justice. 7. On the other hand, the counsel appearing for the respondents no.6 & 7 submitted that the entries were made in the relevant record by the Assistant Land Record Officer as per the oral partition between the parties according to their cultivatory possession and therefore, the same cannot be faulted with. Learned counsel submitted that the first appellate authority while recording the contention of the petitioners herein for condonation of delay did not record any finding and straightaway the order passed by the Assistant Land Record Officer has been set aside after a period of 33 years. Learned counsel submitted that on the facts and in the circumstances of the case, the order impugned passed by the Board of Revenue setting aside the order passed by the Additional Divisional Commissioner does not warrant any interference by this Court in exercise of its supervisory jurisdiction. 8. I have considered the rival submissions and perused the material on record. 9. 8. I have considered the rival submissions and perused the material on record. 9. Indisputably, assailing the legality of the order dated 8.7.78 passed by the Assistant Land Record Officer, the appeal was preferred by the petitioners under Section 75 of the Act of 1956, before the Additional Divisional Commissioner, on 11.8.11. As per provisions of Section 78 of the Act of 1956, the limitation for filing the first appeal is sixty days from the date of the order and thus, apparently, the appeal preferred by the petitioners after a lapse of about 33 years was hopelessly barred by limitation. The explanation furnished by the petitioners regarding gross delay in filing the appeal was that they came to know about the entries made, when purchaser of 1/4 share in the land from the respondents after obtaining the conversion order started activities at the site. It is pertinent to note that though the first appellate authority has noticed the explanation furnished by the petitioners herein, but has not recorded any reasons for condonation of inordinate delay in filing the appeal. It is not in dispute that the parties are in cultivatory possession of their land falling in their share as per oral partition and at no point of time, the co-sharers of the land Madan Singh and Nenu Ram, who were brothers, ever questioned legality of the entries made in the record. Thus, the petitioners who are claiming right over the land in question through Nenu Ram cannot be permitted to question the entries made in the record with the consent of the original khatedar of the land as aforesaid after inordinate delay of 33 years. In the considered opinion of this Court, the appeal preferred being hopelessly time barred was liable to be dismissed on this count alone. 10. Admittedly, the entries were made during the life time of co-sharers Madan Singh and Nenu Ram with their consent and thus, question of an opportunity being accorded to the petitioners, who have acquired the khatedari rights after death of Nenu Ram does not arise. 11. For the aforementioned reasons, in the considered opinion of this court, the order impugned passed by the Board of Revenue does not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 12. 11. For the aforementioned reasons, in the considered opinion of this court, the order impugned passed by the Board of Revenue does not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 12. In the result, the petition fails, it is hereby dismissed. No order as to costs.