VIMLARANI Vs. JAGDISH LAL

JUDGEMENT

(1.) Challenge in this writ petition is to the order dtd. 5/3/2013 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.

(2.) 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 under Sec. 44 of the Chhattisgarh Land Revenue Code, 1959 (in short 'Code, 1959') challenging the mutation entry dtd. 15/9/1992 along with an application under Sec. 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 Sec. 5 of the Limitation Act in proper manner. Sub Divisional Officer only recorded that challenge of mutation entry dtd. 15/9/1992 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 Sec. 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 Sec. 47 of the Code, 1959 provides that limitation will start from the date of knowledge. Courts below have not considered the very important aspect of 'date of knowledge' of petitioners as pleaded in the application under Sec. 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 Sec. 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 14/7/2016 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.

(3.) 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 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 Sec. 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.