SHEOKUMAR BHARAT PRASAD Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal deserves to be dismissed on the short ground that it is time -barred. The appeal was originally presented before the Board of Revenue on 7 -12 -54 but on the request of the learned counsel for the appellant the same was returned on 4 -4 -55 for presentation to the proper Court. The exact orders passed by the then Member, Board of Revenue, reads as follows: - As requested by Shri R. K. Pandey, counsel for the appellant, the memorandum of appeal is returned to him for presentation to the proper authority.

(2.) THE appeal was then presented to the Additional Settlement Commissioner on 7 -4 -55. It was, however, returned by the said Commissioner on 25 -8 -56, again, for presentation to the proper Court and the appeal was presented for the second time before the Board on the same day i. e 25 -8 -56. The learned counsel for the appellant argued that the time spent in prosecuting the appeal before the Additional Settlement Commissioner should be excluded as per provisions of section 14(1) of the Indian Limitation Act. Since the appeal, when originally presented before the Board, was within time, the question of limitation should not stand in the way of the appellant. I am unable to agree with this view for reasons that follow: The order under appeal was passed and admittedly communicated on 31 -8 -54. The appeal for the second time was presented before the Board on 25 -8 -56. This period comes to 725 days. Out of this period the following period has to be excluded:

(3.) EXCLUDING the above period of 613 days, it would be seen that the present appeal has been presented late by 112 days (725=613=112 days). It may be pointed out that the appellant cannot claim deduction of the time lost between the first presentation of the appeal before the Board of Revenue on 7 -12 -54 and his withdrawal of the same on 4 -4 -55, because Article 14 of the Indian Limitation Act is applicable only to cases "where the previous suit was dismissed by the Court itself, because it was unable to entertain it; it does not apply where the previous suit was voluntarily abandoned or withdrawn by the plaintiff. When the previous suit had been terminated not by any action of the Court but by the act of the plaintiff, he cannot claim the benefit of this action": Arunachalam v. Lakshman, 39 Mad. 936, Varajlal v. Shomeswar 29 Bom. 219. It is apparent from the order of the Board dated 4 -4 -55 that the appeal was not returned by the order of the Board but was withdrawn by the appellant on his own initiative. There is, therefore, little doubt that the appeal, as resubmitted on 25 -8 -56, is hopelessly time -barred. Even on merits, the appellant has no case. On the date fixed for hearing before the lower Court the appellant acting through his guardian was not present in spite of notice. All the evidence that was filed with the application consisted of a copy of the Khasra from 1948 -49 to 1951 -52. These Khasras show that the fact of transfer of the disputed land in favour of the appellant was communicated to the patwari only orally and, on the basis of this oral communication, the patwari made the following entry successively till 1950 -51 in the Remarks column of the Khasra...[VERNACULAR TEXT COMITTED]...There is no mention whatsoever that the land in question was physically occupied by the appellant. It was all along shown as grass i. e. unoccupied land and as property of Government. It was only in the year 1951 -52 that an entry of cropping was made in the remarks column. These entries clearly indicate that no real transfer whatsoever was made in favour of the appellant and the patwari never recognised appellant's possession nor did he record the same in the village record. Thus, so far as reliance intended to be placed on village records is concerned, the position seems to be clearly against the appellant. The patwari entry further shows that the transfer -deed was not shown to him, possibly because it was not written till 1950 -51 i.e. before the date of vesting. For if the deed had existed, registered or unregistered, there was no earthly reason why this was not shown to the patwari.