THE DEATH OF USHANGINI DEVI, HER LEGAL REPRESENTATIVES SREE RAM SANKAR MUKHOPADHYA AND ORS. Vs. SADANANDA DAS AND ORS.

JUDGEMENT

(1.) LAND measuring 123 B was sold for arrears of land revenue at a paltry sum of Rs. 400/ -. The sale was on 1.4.63 and the purchases was the Plaintiff. The predecessor -in -interest, of the Appellants approached the Assam Board of Revenue (for short the Board) on 2.11.66 to set aside the sale under Section 81 of the Assam Land and Revenue Regulation, hereinafter the Regulation. The Board after condoning the delay, allowed the petition on 10.1.68, after being satisfied that it was a case of hardship as well as of injustice. This order was challenged by Respondent No. 1 in the Court of the learned Munsiff, Barpeta. The suit was decreed. Feeling aggrieved an appeal was preferred before the learned Assistant District Judge, Barpeta who has dismissed the same by the impugned judgment. Hence this second appeal.

(2.) A point was rightly taken and urged by the Defendant No. 5, the predecessor in interest of the Appellant, that the suit was barred. The learned Courts below have not accepted this contention despite their attention having been drawn to the Full Bench Decision of this Court in Sovana Moitra v. Bakijai Officer, ALR 1971 Gau. 207. This decision has held, as against Sibcharan v. Manik Chandra, AIR 1950 Gau. 141, that the Board has jurisdiction to condone delay in an application under Section 81. It may be pointed out that the Full Bench Decision has dealt with this point in the context of new Limitation Act, whereas Sibcharan's judgment was under the old Act. The learned Assistant District Judge despite noting the Full Bench decision held that civil Court had jurisdiction because on the facts and circumstances of the case the delay ought not to have been condoned by the Board. Now, if the Board had jurisdiction to condone delay, it was for it to decide on the facts of this case whether the delay should have been condoned or not. Had it been that the Board had no jurisdiction to condone delay the ratio of Sibcharan would have applied which has held that if sale is set aside beyond one year of its becoming final civil Court would have jurisdiction to declare the order of as a nullity as it would be against an express direction contained in a statute. But the position in the instant case is not that, as it has been held in the aforesaid Full Bench decision that the Board while entertaining an application, under Section 81 of the Regulation has the jurisdiction, in view of the provisions in the new Limitation Act, to condone delay. (The present is apparently a case under the later Limitation Act) Any error within jurisdiction can be corrected by an appellate forum only, and a civil Court would have no jurisdiction when the question is whether delay would have been condoned or not. Thus the suit did not lie view of Section 154 of the Regulation and at that has been (sic) on the merits of the case is really without jurisdiction. Still let it be seen as to why the land owner had to lose (sic) merits. One of the points urged on her behalf was that the (sic) was without serving notice on her as required by Rule 136A the Settlement Rules framed under the Regulation. This rule mades:

(3.) THIS point had come up for examination before a Division (sic) of this Court in Sher Ali v. Assam Board of Revenue, (1981) 1 GLR 283. As held therein proper service of notice as (sic) by Rule 136A is a mandatory provision and failure to (sic) with it strictly would render, the sale a nullity. Now, the language of the rule it cannot be doubted that a sale can be posted on a conspicuous part of an estate only where (sic) service is not possible. The law has rightly insisted on (sic) notice because after all a valuable right of the concerned (sic) is in jeopardy. In such a case the ritual of "hanging" not do. That would be permissible only after genuine to serve the notice on the defaulter fail. The present is case of that nature.