Partly allowed

Vimlarani and Ors. v. Jagdish Lal and Ors.

Chhattisgarh HC14 Mar 2022WP227/481/2013

Case brief

AI extract

What is this about?

This High Court allowed a writ petition challenging the dismissal of a revenue appeal on limitation grounds. The Court held that lower authorities erred in rejecting an application for condonation of delay, as they ignored pleaded grounds establishing a later date of knowledge of the mutation order. The appeal is remitted to the Sub-Divisional Officer to be decided on merits within six months.

What did the court decide?

The impugned order dated 05.03.2013 and subsequent orders are set aside. The application for condonation of delay is allowed. The appeal is remitted to the Sub-Divisional Officer to decide on merits w

Vimlarani and Ors. Vs Jagdish Lal and Ors. — Land Acquisition | Chhattisgarh HC (2022)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WP227 No. 481 of 2013

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Vimlarani, W/o Late Surjeet Singh, aged around 54 Years.

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Jitendra Kumar, S/o Late Surjeet Singh, aged around 35 Years.

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Rajendra Kumar, S/o Late Surjeet Singh, aged around 31 years.

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Ku. Rozi, D/o Late Surjeet Singh, aged around 27 years. Petitioner No.1 to 4 all resident of Main Road Saraipali, Tehsil Saraipali, P.S. Saraipali, District Mahasamund, Chhattisgarh.

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---- Petitioners

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Versus

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Jagdish Lal, S/o Lakhisingh Upoweja, aged around 70 Years, R/o Bazaarpara, Ward No. 10, Saraipali, Tehsil Saraipali, P.S. Saraiparli, District Mahasamund, Chhattisgarh.

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Board of Revenue, Chhattisgarh, Bilaspur, Chhattisgarh. 3. The Commissioner (Revenue), Raipur Division, Raipur, Chhattisgarh.

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The Sub Divisional Officer, Saraipali, District Mahasamund, Chhattisgarh.

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The Revenue Inspector, Tahsil Saraipali, District Mahasamund, Chhattisgarh. ---- Respondents

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------------------------------------------------------------------------------------For Petitioners : Mr. Sanjay Agrawal, Advocate For Respondent No.1 : Mr. Manoj Paranjpe, Advocate For Respondents 3 to 5 : Mr. Shakti Singh Thakur, P.L.

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Hon'ble Shri Justice Parth Prateem Sahu

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Order on Board

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14.03.2022

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Challenge in this writ petition is to the order dated 05.03.2013 passed by Board of Revenue, Chhattisgarh in Revenue Revision Case No.R.N./12/R/A-6/101/2011 whereby Board of Revenue while upholding the order passed by Commissioner, dismissed the revision petition filed by petitioners herein.

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Mr. Sanjay Agrawal, learned counsel for petitioner would submit that immovable property situated at village Saraipali, Patwari Halka No.9, Khasra No.188/7, measuring 0.340 hectares was initially recorded in the name of Surjeet Singh, husband of petitioner No.1 and father of petitioners No.2 to 4. When respondent No.1 started raising construction over property in dispute, Surjeet Singh raised objection, upon which, respondent No.1 intimated that he is owner of said property as his name is recorded. Surjeet Singh inquired with Patwari with regard to registered owner in revenue records, upon which, he came to know that based on unregistered document said to be executed by Surjeet Singh, name of respondent No.1 was mutated. After getting knowledge of illegal mutation of name of respondent No.1 in revenue records in the month of July, 2004, he immediately thereafter, filed an appeal before the Sub Divisional Officer, Saraipali

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under Section 44 of the Chhattisgarh Land Revenue Code, 1959 (in short 'Code, 1959') challenging the mutation entry dated 15.09.1992 along with an application under Section 5 of the Limitation Act, 1963 (in short ‘Limitation Act’) for condonation of delay. He submits that Sub Divisional Officer dismissed the appeal only on the ground of delay without considering the grounds mentioned in application under Section 5 of the Limitation Act in proper manner. Sub Divisional Officer only recorded that challenge of mutation entry dated 15.09.1992 is made only in the year 2004, appeal is filed with delay of 12 years. Sub Divisional Officer has not recorded any finding as to why the grounds mentioned in application under Section 5 of the Limitation Act is not acceptable. During pendency of appeal before Sub Divisional Officer, Surjeet Singh (original owner) died and his legal representatives were brought on record. After dismissal of appeal by Sub Divisional Officer, petitioners have challenged the order before the Commissioner, Raipur Division, Raipur, which also came to be dismissed and Board of Revenue also dismissed the revision by impugned order. It is contended that period of limitation in case where appellant is not party, starts from the date of knowledge of any order under challenge. He also pointed out that Section 47 of the Code, 1959 provides that limitation will start from the date of knowledge. Courts below have not considered the very

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important aspect of ‘date of knowledge’ of petitioners as pleaded in the application under Section 5 of the Limitation Act. Board of Revenue has recorded that petitioners have failed to explain as to how and when they came to knowledge of alleged mutation overlooking the specific pleading in the application under Section 5 of the Limitation Act. He submits that initially Surjeet Singh filed appeal immediately after getting knowledge in the year 2004, hence, Sub Divisional Officer ought to have condoned delay and considered the appeal on merits. In support of his contention, he places reliance upon the dictum of Hon'ble Supreme Court in case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others reported in (2013) 12 SCC 649 and C.K. Prahalada and Others v. State of Karnataka and Others reported in (2008) 15 SCC 577 . He also places reliance upon the judgments passed by this Court on 14.07.2016 in Second Appeal No.219 of 2016 ( Jageshwar v. Neeldhawaj and Others ) and in case of Rajesh v. Bharat Prasad Pandey reported in Laws (CHH) 2016 9 27 .

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Per contra, Mr. Manoj Paranjpe, learned counsel for respondent No.1 would submit that Courts below have considered the facts of the case elaborately. It is settlement deed executed by original owner of the land i.e. Surjeet

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Singh, based upon which, name of respondent No.1 is mutated in the revenue records. Merely because the document is not registered or there is no order of competent authority, family settlement arrived at between members of family cannot be questioned ordinarily. Submission of the petitioners that they get knowledge in the year 2004, of mutation entry of the year 1992 is not acceptable when petitioners are also residing in the same village where land in dispute is situated. He submits that the revenue entry is made by Revenue Inspector based on the family settlement arrived between two brothers, hence, mutation of name cannot be re-opened. Petitioners have not placed on record copy of application under Section 5 of the Limitation Act so that submission of learned counsel for the petitioners can be appreciated with respect to means and date of knowledge. There are concurrent findings of fact by three Courts below, hence, no interference is warranted in impugned order passed by the Board of Revenue.

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Mr. Shakti Singh Thakur, learned Panel Lawyer for respondents No.3 to 5 would submit that State is formal party and impugned order is passed by Board of Revenue in accordance with law.

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I have heard learned counsel for the parties.

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To appreciate the submission of learned counsel for the petitioners with respect to cause of delay mentioned in application for condonation of delay, perusal of Annexure P/2 i.e. order of Sub Divisional Officer would show that petitioners have pleaded in their application, of getting knowledge from Patwari of mutation entry in June and thereafter, obtained certified copy of mutation entry of revenue records and filed appeal in the month of July, 2004 within one month. Sub Divisional Officer while considering application for condonation of delay has only recorded that appeal is filed with inordinate delay of 12 years, but not considered the date of knowledge of mutation. Sub Divisional Officer has not discussed in specific terms the reasons assigned by petitioners in application for condonation of delay with respect to date of knowledge and dismissed the application under Section 5 of the Limitation Act, consequently, appeal also holding it was barred by limitation. Both the Authorities i.e. Commissioner as well as Board of Revenue affirmed the order passed by Sub Divisional Officer. Commissioner in his order dated 05.03.2011 has recorded a new fact that petitioners have not raised any objection when respondent No.1 raised boundary wall over the property in dispute. The finding recorded by Commissioner is not sustainable in view of the ground raised by petitioners in an application under Section 5 of the Limitation Act wherein they have specifically

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pleaded that when respondent No.1 started raising construction over the property in dispute, they approached Patwari, verified the fact, obtained certified copy and thereafter preferred the appeal, hence, finding recorded by Commissioner is also not sustainable. Commissioner took note of period of 12 years in filing of appeal without considering the grounds raised in application in proper manner. Similarly, Board of Revenue dismissed the revision holding that petitioners have failed to explain the delay of each day and further that delay of 12 years in filing of appeal even after considering the provisions under Section 47 of the Code, 1959.

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There is no dispute that appeal is filed after 12 years from the date of mutation entry made by Revenue Inspector. Petitioners in their application under Section 5 of the Limitation Act have very specifically pleaded that when respondent No.1 started raising construction over the property in dispute, they have objected, approached the revenue authorities, obtained certified copy and immediately thereafter, filed appeal.

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Provisions under Section 47 of the Code, 1959 in clear terms provides for limitation of filing appeals. Second proviso to Section 47 provides that where any order is passed ex parte , without previous notice of the date against order is passed,

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limitation under this Section shall be computed from the date of communication of such order. It provides that period of limitation would start from the date of knowledge. Relevant portion Section 47 of the Code of 1959 is extracted below for ready reference :

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“ 47. Limitation of appeals. - No appeal shall lie-

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(a) to the Sub-Divisional Officer or Collector or Settlement Officer or Settlement Commissioner, after the expiration of [thirty days] / [forty-five days] from the date of the order to which objection is made; or

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[(b) to the Commissioner after the expiration of [forty-five days] / [sixty days] from such date; or.]

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[Provided that where the order, against which appeal is being preferred, made before the coming into force of the Madhya Pradesh Land Revenue Code (Amendment) Act, 2011, in such case appeal shall be entertained within the time limit provided in the Code prior to this said Amendment Act:]

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First Proviso as applicable in C.G. only

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“Provided that an appeal to any Revenue Officer specified in clause (a) from an order passed in the Madhya Bharat region before the coming into force of this Code may be filed before the expiration of sixty days from the date of such order:”

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Provided further that where a party, other than a party against whom the order has been passed ex-parte , had no previous notice of the date on which the order is passed, limitation under this section shall be computed from the date of the communication of such order.”

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In the case at hand, petitioners have pleaded that they got knowledge of mutation entry only on 20.06.2004, obtained certified copy of mutation entry on 21.06.2004 and within period of 45 days, they have preferred appeal on 14.07.2004.

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Hon’ble Supreme Court in case of Md. Noorul Hoda v. Bibi Raifunnisa and Others reported in (1996) 7 SCC 767 while considering the provisions under Section 59 of the Limitation Act for challenging the sale deed has observed that “ starting point of limitation is the date of knowledge of the alleged fraud ”.

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Hon’ble Supreme Court in case of N. Balakrishnan v. M. Krishnamurthy reported in (1998) 7 SCC 123 while dealing with application for condonation of delay and sufficient cause, held that sufficient cause has to be construed liberally and held as under :-

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“11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.”

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If the facts of the case are considered in the light of aforementioned rulings of Hon'ble Supreme Court, original owner of the land i.e. Surjeet Singh has filed an appeal along

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with an application for condonation of delay pleading specifically that order was passed without his knowledge, further date of knowledge is specifically pleaded as “when respondent No.1 started raising construction over the property in dispute”, appeal is filed within the period prescribed under Section 47 of the Code, 1959 from the date of knowledge. The Sub Divisional Officer Appellate Authority recorded that the order of mutation is passed based on the mutual agreement deed. The agreement deed was denied by appellant. Appellate Authority has not recorded that appellant was having knowledge by any means and mentioning appeal is filed with delay, dismissed the same. In appeal, petitioner has raised specific ground that the Revenue Inspector before mutating the name has not followed the law under the Land Revenue Code of issuing proclamation, written notice, information by beating of drums, affixing of notice at Choupal. Sub Divisional Officer has not considered the grounds raised in appeal which are also very important to consider the application for condonation of delay as under Section 47 of the Code of 1959, the period of limitation will start from the date of communication of order. Communication of order in this case by Patwari is pleaded as 21.06.2004 and thereafter within 45 days, appeal was filed. In the facts of the aforementioned discussion and further considering that the respondent could not place on any record any document to

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show that the appellant also participated in mutation proceedings.

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In view of aforementioned facts of the case, in the considered opinion of this Court, Revenue Courts below have committed error in dismissing the application for condonation of delay under Section 5 of the Limitation Act and consequently, the appeal being barred by limitation, which is not sustainable.

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For the foregoing reasons, writ petition is allowed. Impugned order (Annexure P/1) dated 05.03.2013 is set aside. Consequently, order of Commissioner dated 05.03.2011 and order of Sub Divisional Officer dated 18.06.2007 are also set aside. Application under Section 5 of the Limitation Act filed by the petitioners is allowed. Case is remitted back to the Court of Sub Divisional Officer, Saraipali, District Mahasamund to consider and decide the appeal filed by the petitioners under Section 44 of the Code, 1959 in Revenue Appeal No.83-A/6 Year 2006-07 on merits.

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At this stage, Mr. Paranjpe, learned counsel for respondent No.1 would submit that respondent No.1 by now is 86 years of age and therefore, a direction be issued to Sub Divisional Officer, Saraipali, District Mahasamund to consider and decide the appeal within the specified time frame.

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Learned counsel for the petitioners submits that they are having no objection to the prayer made by learned counsel for respondent No.1.

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In view of above, Sub Divisional Officer, Saraipali, District Mahasamund is directed to consider and decide the appeal on merits preferably within a period of 'six months' from the date of production of certified copy of this order.

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Sd/-

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(Parth Prateem Sahu) Judge

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Yogesh

Vimlarani and Ors. v. Jagdish Lal and Ors.

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Vimlarani and Ors. v. Jagdish Lal and Ors.

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