B.N.K.B. Mahavidyalay, Akbar, Pargana., Tehsil, Ambedkar Nagar Thru. Manager and Another vs Matadeen @ Mitthu (Now Died) Thru. 1/1. Smt. Kusum Lata Mishra

Neutral Citation No. - 2025:AHC-LKO:832

Court No. - 17

Case :- CIVIL MISC REVIEW APPLICATION DEFECTIVE No. - 246 of 2024

Applicant :- B.N.K.B. Mahavidyalay, Akbar, Pargana., Tehsil, Ambedkar Nagar Thru. Manager And Another Opposite Party :- Matadeen @ Mitthu (Now Died) Thru. 1/1. Smt. Kusum Lata Mishra Counsel for Applicant :- Saryu Prasad Tiwari,Prince Kumar Pandey,Shailesh Kumar Pathak

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Hon'ble Manish Kumar,J.

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Order on C.M Application No. 01 of 2024 (Delay Condonation Application)

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The present review application has been preferred for condoning the delay in filing the present review application.

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The reason assigned in the delay condonation application is found satisfactory.

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The application is allowed .

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The delay is hereby condoned.

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Order on Review Application

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The present review application has been preferred for review of the judgment and order dated 08.07.2024 passed in Matters under Article 227 No. 4657 of 2006 and the connected Writ C No. 1001610 of 2010 (Matadeen @Mitthu versus Additional District Judge, Ambedkar Nagar and others).

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Learned counsel for the review applicant, who was the respondent in the writ petition has submitted by placing reliance on paragraph no. 17 of the judgment which is under review by advancing a submission that the property was not governed by Mitakshara Law and hence the benefit of Article 109 of the Limitation Act, 1963 (hereinafter referred as Act, 1963) cannot be given and the case is governed by Article 56 of the Act, 1963 where the limitation period is 3 years. The relevant extract of the judgment relied which is under review is quoted hereinbelow:-

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"17. It is further submitted that Article 109 of the Act, 1963 is attracted in the case of the petitioner as the knowledge about the sankalp patra and the sale deed had come for the first time when the written statement was filed by the respondents in the year 1998 and the period of 12 years would have expired in the year 2010, whereas the amendment application was moved in the year 2009 well within the

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period of 12 years."

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It is further submitted that the review applicant had no knowledge about the submission that the property is governed by Mitakshara law, so the benefit of Article 109 of the Act, 1963 could not be made available to the petitioner/respondent in the present review application.

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It is further submitted that in the present case, the limitation period is three years and just to justify their case for the purposes of limitation, it was argued that the property is governed by Mitakshara Law, so the period of limitation would be extended from 3 years to 12 years as per Article 109 of the Act, 1963, whereas, the property is not governed by Mitakshara law.

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This Court earlier adjourned the case on the issue regarding the period of limitation to challenge the sale deed and the gift deed ( Sankalp nama) , whether it would be three years as per Article 56 of the Act, 1963 or 12 years as per Article 109 of the Act, 1963 by passing a detailed order on 08.04.2022 and the reason for adjourning the matter after passing the detailed order has already been indicated in Pargraph-14 and 15 of the judgment under review, so it is incorrect to say that the applicant has no knowledge that the petitioners had argued that the property is governed by Mitakshara law.

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Apart from above, the judgment under review whereby the order has been passed treating the period of limitation as 3 years as per Article 56 of the Act, 1963, as argued by learned counsel for the review applicant and not 12 years as per Article 109 of the Act, 1963, treating the period of limitation governed by Mitakshara law. The relevant paragraphs are quoted hereinbelow:-

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" 27. The possession is with the respondents or not, the Court cannot give any finding on this issue as this involves disputed question of fact but prima facie the records showing the possession is in favour of the petitioner.

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28. Article 56 provides for period of limitation relating to 'suits relating to declaration' whereas the prayer made by moving an amendment application is for prayer relating to miscellaneous matters which includes alienation of the possession of the property governed by Article 109 of the Act, 1963, where the property belongs to a Hindu family governed by Mitakshara law to set aside his father's alienation of ancestral property and the limitation period provided is 12 years, hence the amendment application preferred by the petitioner was within the period of limitation as per Article 109 of the Act, 1963.

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29. The application bearing No. 140-Ga-2 dated 04.05.2006 filed by the respondents seeking permission to file the original copy of the gift deed (Sankalp nama) and the sale deed after about more than 7 years of filing of the written statement and the same was allowed by the trial court and the order was upheld by the revisional Court on the ground that no prejudice would be caused to the petitioner. Thereafter, the petitioner moved an application for amendment on 18.03.2009 as there was no interim order granted in his favour in writ petition

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(MATTERS UNDER ARTICLE 227 No. - 4657 of 2006) filed by the petitioner against the orders allowing the application filed by the respondents as mentioned above, ignoring completely that the application preferred by the respondent/defendant as mentioned above was filed with a delay of more than 7 years whereas the amendment application was preferred by the petitioner in three years of filing of the alleged original gift deed and sale deed, which is within limitation.

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30. In view of the facts and circumstances discussed hereinabove, the writ petition (WRIT - C No. - 1001610 of 2010) is hereby allowed. The impugned orders dated 06.04.2009 and 05.03.2010 passed by respondent nos. 2 & 1 respectively are hereby quashed. The amendment prayed in the plaint is allowed.

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31. In Writ Petition (MATTERS UNDER ARTICLE 227 No. - 4657 of 2006), the application for taking the original documents on record was allowed by the trial court on payment of cost of Rs.100/- and the revisional court rejected the revision with an observation that it would cause no prejudice to the petitioner since the petitioner would have full opportunity to controvert the documents and the plea of the respondents, this reasoning given by the courts below cannot be faulted with. Merely by bringing the documents on record would not amount to accepting the case of the respondents relating to the documents and the pleas raised thereupon. The petitioner will have full opportunity to rebut the same and challenge the genuineness of the documents. That being the position the impugned orders do not call for any interference. Hence, the Writ Petition (MATTERS UNDER ARTICLE 227 No. - 4657 of 2006) is hereby dismissed. "

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The present review application has been filed for review of the judgment and order dated 08.07.2024 on the basis of the submissions made by learned counsel for the petitioner/respondent and at no point of time, learned counsel for the review applicant has challenged or disputed the finding given by the court by treating the application moved by the petitioner within a period of three years and not giving the benefit of Article 109 of the Act, 1963. The benefit of limitation of 12 years as provided under Article 109 has been given by the judgment under review, hence no question of review of the judgment arises.

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In view of the facts, circumstances and discussion made hereinabove, the present review application is misconceived as there is no apparent error on the face of the record.

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Accordingly, the present review application is dismissed .

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Order Date :- 7.1.2025 DiVYa

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Digitally signed by :- DIVYA SINGH High Court of Judicature at Allahabad, Lucknow Bench

B.N.K.B. Mahavidyalay, Akbar, Pargana., Tehsil, Ambedkar Nagar Thru. Manager and Another v. Matadeen @ Mitthu (Now Died) Thru. 1/1. Smt. Kusum Lata Mishra

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B.N.K.B. Mahavidyalay, Akbar, Pargana., Tehsil, Ambedkar Nagar Thru. Manager and Another v. Matadeen @ Mitthu (Now Died) Thru. 1/1. Smt. Kusum Lata Mishra

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