STATE OF HIMACHAL PRADESH Vs. OM PARKASH SAHANI

JUDGEMENT

(1.) The above second appeal has been filed against the order dated 10.8.1992 in CMA No. 42 -S/6 of 1992, passed by the learned District Judge, Solan, dismissing an application filed by the appellant -State under Section 5 of the Limitation Act, 1963 seeking for the condonation of 88 days delay, in filing an appeal against the judgment and decree dated 17.8.1991 passed by the Assistant Collector, 1st Grade, Solan, exercising the powers of the Civil Court, under Section 163 of the Himachal Pradesh Land Revenue Act, 1953. The factual details necessary for dealing with and disposing of this appeal are in a narrow compass. I desist from adverting to the respective claims of the parties on merits of the contentions having regard to the judgment I intend to pass on this appeal and the consequences of such disposal to be given to this appeal. The fact that the property in question is a Government land initially cannot be seriously disputed. It appears that the respondent has come to occupy the land measuring 61 sq. metres, comprised in Khasra No. 289/2, situated at Jawahar Park, Solan, by encroaching upon the same. The Patwari Halqua, Solan, appears to have made a report dated 5.11.1990 bringing to the notice of the competent authority about the encroachment and in the consequential proceedings instituted by the Assistant Collector under the. Land Revenue Act, the Respondent asserted a claim of having perfected title by adverse possession on account of his being in occupation and enjoyment of the property for more than 30 years. The Assistant Collector assumed the powers of the Civil Court as envisaged under Section 163 of the Land Revenue Act and dealt with the matter as a Civil Suit. After following the required procedure, the suit of the appellant came to be dismissed vide his judgment and decree dated 17.8.1991.

(2.) The application for a copy of the judgment appears to have itself been made only on 21.1.1992 and certified copies were said to have been supplied on 27.1.1992. Thereupon, the memorandum of appeal was actually filed on the first opening day of the Civil Court on 19.2.1992 and the application appears to have been filed seeking for condonation of the period of limitation from 17.8.1991 to 19.2.1992.

(3.) The said application for condonation was opposed by the respondent -defendant in the Court below. The learned District Judge after noticing the fact that the requisite period of limitation meant for filing the appeal in matters of this nature being 30 days and it should have been otherwise expired on 16.9.1991 computing from the date of the judgment and on finding that even an application for copy of the -judgment was filed about 4 months and 5*days after the expiry of the limitation period, the learned District Judge adverting to the principles laid down by. a Division Bench of this Court in a decision reported in AIR 1977 HP. 13, State of Himachal Pradesh v. Vijay Singh, and by the Patna High Court reported in AIR 1985 Pat 187, State of Bihar v. Bhajadhari Rai, held that the appellant has not made out a case of sufficient cause for condonation of the delay and consequently ordered the dismissal of the application -for condonation filed under Section 5 of the Limitation Act, 1963. As a consequence thereof the appeal also came to be summarily rejected at the stage of the registration itself. Hence, the above second appeal.