Shiv Singh vs Bheekhi Bai Daughter And Ors

This petition is directed against order dated 9.12.16 passed by the Board of Revenue Rajasthan, dismissing the revision petition preferred by the petitioner against the order dated 23.1.14 passed by the Sub Divisional Officer (SDO), Sumerpur, whereby the application filed by the respondents under Section 5 of Limitation Act, was allowed and delay in filing the appeal was condoned.

Learned counsel appearing for the petitioner contended that the SDO, Sumerpur has seriously erred in condoning the inordinate delay of 24 years in filing the appeal without any justifiable reason. Learned counsel submitted that the disputed land was mutated in the name of the petitioner on 10.5.90 on the strength of gift deed and adoption deed executed by petitioner's adoptive mother and the respondent knowing fully well about the factum of adoption did not choose to question the mutation effected with utmost expedition. Learned counsel submitted that the story of the first respondent coming to know about the factum of execution of the gift deed and adoption deed only on 10.1.12 and 2.2.12, is absolutely false. Drawing the attention of the court to the order passed by the SDO, Sumerpur, learned counsel submitted that inordinate delay in filing the appeal has been condoned by the SDO solely on the ground that the mutation was effected without giving an opportunity of hearing to the legal heirs of deceased khatedar of the land. Learned counsel submitted that the condonation of delay without arriving at the finding regarding the first respondent being prevented from filing the appeal within limitation for sufficient cause is not sustainable in the eyes of law and thus, the Board of Revenue has seriously erred in dismissing the revision petition preferred by the petitioner.

On the other hand, the counsel appearing for the first respondent submitted that for the sake of substantial justice, the order passed by the SDO, Sumerpur, affirmed by the Board of Revenue does not warrant any interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

I have considered the submissions of the learned counsel for the parties and perused the material on record.

Admittedly, the appeal questioning the order dated 10.5.90 sanctioning the mutation of the disputed land in favour of the petitioner was filed by the first respondent on 22.2.12 i.e. about after 22 years. A perusal of the application preferred on behalf of the first respondent under Section 5 of Limitation Act, reveals that the condonation of delay was sought on the ground that the first respondent had come to know about the execution of the gift deed and adoption deed by his adoptive mother on 10.1.12 and 2.2.12 respectively. The application was contested by the first respondent taking the stand that the petitioner was adopted by his adoptive mother, the natural mother of the first respondent, on 21.4.89, the fact which was known to the first respondent. It was averred that the first respondent was never in possession of the disputed land. The stand taken by the petitioner as aforesaid has not been taken note of by the SDO, Sumerpur while passing the order dated 23.1.14. The inordinate delay in filing the appeal has been condoned solely on the ground that the mutation in favour of the petitioner was effected without extending an opportunity of hearing to the first respondent. Suffice it to say that the reasons assigned for filing the appeal after inordinate delay of 22 years is properly explained or not and whether the same constitute sufficient cause for condoning the delay, is not even examined by the SDO appropriately.

It is true that the law of procedure is hand maiden of justice and when the procedural technicalities and the substantial justice are pitted against each other, the later has to be preferred. But then, the matter always cannot be looked from one angle so as to condone the lapses on the part of erring litigant. In any case, the application seeking condonation of inordinate delay was required to be considered by the SDO objectively and the delay could not have been condoned solely on the ground that mutation in the name of the petitioner was effected without giving an opportunity of hearing to the legal heirs of deceased khatedar.

In view of the discussion above, in the considered opinion of this court, the order impugned passed by the Board of Revenue Rajasthan as also the order passed by the SDO, Sumerpur, allowing the application preferred under Section 5 of Limitation Act, preferred by the first respondent deserve to be set aside.

In the result, the petition is allowed. The order impugned dated 9.12.16 passed by the Board of Revenue Rajasthan and order dated 23.1.14 passed by the SDO, Sumerpur, are set aside. The matter is remanded to the SDO, Sumerpur for consideration of the application under Section 5 of Limitation Act afresh, in accordance with law. The parties shall appear before the Sub Divisional Officer, Sumerpur on 11.9.19. No order as to costs.