Allowed

Ram Singh v. State

Rajasthan HC21 Jan 2014CW/4707/1989

Case brief

AI extract

What is this about?

High Court allowed the writ petition and set aside the impugned order of the Board of Revenue and Revenue Appellate Authority. The matter was remanded to the Revenue Appellate Authority to first decide the application under Section 5 of the Limitation Act. Merits cannot be examined until the delay hurdle is cleared.

What did the court decide?

Writ petition allowed; impugned orders of Board of Revenue and Revenue Appellate Authority set aside; matter remanded to Revenue Appellate Authority to decide application under Section 5 of Limitation

Ram Singh Vs State — Property and Title | Rajasthan HC (2014)

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{1} SB CIVIL WRIT PETITION NO.4707/1989

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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O R D E R

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S.B. CIVIL WRIT PETITION NO.4707/ 1989

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RAM SINGH (SINCE DECEASED) THROUGH HIS LEGAL REPRESENTATIVES Vs. STATE OF RAJASTHAN & ORS.

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DATE:21.01.2014

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HON'BLE MR. JUSTICE M.N. BHANDARI

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Mr. Deepak Goyal, for the petitioners. None present for the respondents.

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A suit filed by the non-petitioner No.5 was decreed ex parte in the year 1981. The petitioner (since deceased and represented through his legal representatives) preferred an appeal before the Board of Revenue along with application for condonation of delay, inasmuch as the appeal before the Revenue Appellate Authority was filed in the year 1985. There was a delay of nearly four years in maintaining the appeal. The Revenue Appellate Authority allowed the appeal preferred by the petitioner (since deceased). A challenge was made to the said order before the Board of Revenue. The order of the Revenue Appellate Authority was reversed by the Board of Revenue by the impugned order.

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Learned counsel for the petitioner submits that without effecting service of the notice, an ex parte decree was passed. The petitioner was not having the knowledge of institution of the suit, so as the decree. Thus, he preferred an appeal before the Revenue Appellate

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SB CIVIL WRIT PETITION NO.4707/1989

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Authority immediately after getting knowledge of the decree. An application for condonation of delay was also moved. The Revenue Appellate Authority set aside the ex parte decree and remanded the matter back to the trial Court. It is precisely after recording a finding of fact that service on the petitioner was not effected and even otherwise commenting on the merits. It came to the conclusion that based on the oral evidence alone, the property should not have been treated as ancestral so as to divide it between the brothers. The Board of Revenue without commenting on the merits of the case, set aside the order passed by the Revenue Appellate Authority. If at all, the service of the notice was effected or the petitioner was having the knowledge about the pendency of the suit, the Board of Revenue should have looked into the merits of the case. The suit should not have been decreed based on oral evidence alone, more so, when it is claimed to be an ancestral property. In view of the above, the impugned order of the Board of Revenue may be set aside while maintaining the order of the Revenue Appellate Authority.

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No one appears on behalf of the respondents to oppose the writ petition.

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I have considered the submissions made by the learned counsel for the petitioner and perused the record.

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A challenge was made to the order of Board of Revenue, where the order of Revenue Appellate Authority has been reversed and appeal preferred by the respondent No.2 was allowed. The main ground to challenge is the ignorance of merits discussed by the Revenue Appellate

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{3} SB CIVIL WRIT PETITION NO.4707/1989

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Authority to set aside the ex parte decree and to remand the matter. It is apart from the fact that service of notice was not effected. The Board of Revenue erroneously took knowledge to be sufficient for the aforesaid purposes.

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I have considered the submissions made above and find that so far as the issue of service of notice is concerned, mere knowledge of the institution of the suit is not sufficient to presume service. The order of the Board of Revenue to that extent needs consideration. The fact however remains as to whether it should be set aside on the ground aforesaid alone. It is in view of the fact that the appeal before the Revenue Appellate Authority was preferred after lapse of nearly four years along with application under Section 5 of the Limitation Act. The Board of Revenue considered the issue of limitation for maintaining the appeal. It has quoted the affidavit filed by the petitioner to seek condonation of delay. The order of the Revenue Appellate Authority is totally silent. If the application under Section 5 of the Limitation Act was not decided to condone the delay for maintaining the appeal, the order passed by the Revenue Appellate Authority cannot sustain. The issue of limitation has been considered by the Board of Revenue by referring the affidavit but finding has not been given. If delay is not condoned to maintain appeal before the Revenue Appellate Authority, the decision on merits cannot be looked into. The appeal can be looked into only when the hurdle of delay is over.

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In view of above, issues on merits should have been touched by the Revenue Appellate Authority unless the delay is condoned and appeal is

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{4} SB CIVIL WRIT PETITION NO.4707/1989

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maintained for hearing on its merit. Looking to the facts aforesaid, the first issue as to whether service of notice of the suit was effected or not,

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could not have been gone into by the Revenue Appellate Authority, as it can be when appeal is maintained after condonation of delay, and not

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otherwise.

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In view of the discussion made above, even the merit of the case as to whether evidence was existing to show the property to be ancestral one or not, cannot be looked into. The Revenue Appellate Authority should have decided the appeal after considering the application for condonation of delay. The Board of Revenue should have remanded the matter for consideration of the aforesaid issue.

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In view of above, the impugned order of the Board of Revenue so as the Revenue Appellate Authority are set aside and the matter is remanded back to the Revenue Appellate Authority with a direction to first decide the application under Section 5 of the Limitation Act, after hearing both the parties and if delay is condoned, then only decide the case on merit.

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The writ petition is allowed with the aforesaid.

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/ KKC/

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Certificate:

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All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.

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KAMLESH KUMAR P.A.

Ram Singh v. State

Case brief

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Ram Singh v. State

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