RAJA AVADHESH PRATAP MALL Vs. ASST CED

JUDGEMENT

(1.) FACED with the piquant situation of having lost title to property in consequence of a decree passed by this court in first appeal arising out of a suit for declaration, and yet an inclusion of the same in the determination of assets, under the E.D. Act, 1953, the petitioner came to this court under Article 226 of the Constitution of India in 1972 seeking the quashing of the order passed by the Asst. Controller, as far back as December 11, 1962.

(2.) BEFORE examining whether this court should refrain from exercising its extraordinary jurisdiction as the petitioner came to this court after a lapse of ten years, it is appropriate to narrate the background in which the events moved as it shall help not only in resolving the controversy on merits but shall assist in deciding the preliminary objection raised by learned standing counsel for the Commissioner of Income-tax. One Kamal Kishore Mall was the Raja of what was known as Majhauli Estate. After his death his widow, for brevity "Rani", continued in possession over the estate till 1937. On her death, Balbhadra Mall, the grandfather of the petitioner, a collateral of the Raja, entered into possession. In 1940, the mother-in-law of the Rani filed Suit No. 41 of 1940 for seeking declaration and possession over the property. Another suit was filed by one Pratap Kishore Mall claiming to be the adopted son of the Rani. The later suit, however, was dismissed and the judgment became final. Suit No. 41 of 1940 was contested by Balbhadra Mall. It was claimed that Majhauli Estate was an ancient impartible estate governed by the rule of male lineal primogeniture. The suit was dismissed in 1945. First appeal against this was allowed on January 29, 1971. And we are informed that an appeal against this decree has been dismissed by the Supreme Court.

(3.) LEARNED standing counsel for the Commissioner, however, vehemently argued that the petitioner having filed this petition after ten years of the date when the assessment order was passed was guilty of laches and this court should not issue writ in favour of a person who was not vigilant. He also urged that appeal against assessment order having been dismissed as barred by time and there being no error in that order, the petitioner was not entitled to any relief. According to the learned counsel, the Department being not a party in the civil suit or in the first appeal allowed by this court, it was not bound by it and the order passed by the Asst. Controller cannot be set aside on this ground.