BHUR BAI Vs. LRS OF LATE RAM SINGH

JUDGEMENT

(1.) The case comes up for hearing after 18 years of having been filed in this Court on 1.7.1995 by Smt. Man Bai W/o. late Sh. Kan Singh and Smt. Bhur Bai D/o. Durjan Singh. The petitioner No. 3 LRs. of late Bhagwat Singh are the purchasers of the suit property, namely, agricultural land of 12 bighas and 6 biswas situated at Kaya Falan, Amli Ghati, Girwa, Udaipur, from Smt. Bhur Bai, who is daughter of Smt. Man Bai, who expired during the pendency of this writ petition vide application filed in this Court on 2.8.2002 and thus, her name was deleted from the array vide order dtd. 21.8.2002 and amended cause title was directed to be filed. The writ petition has been filed against the order of the learned Single Member of the Board of Revenue dtd. 8.3.1995, by which the Board of Revenue dismissed the revision petition No. 11/87/Udaipur-Man Bai and Ors. vs. Ram Singh and Ors. The said revision petition was filed against the order of the learned Revenue Appellate Authority in appeal No. 151/85 - Man Bai and Ors. vs. Ram Singh and Ors. which appeal also came to be dismissed by the learned RAA, Udaipur on 21.2.1987 holding the appeal to be time barred and rejecting the application filed under Section 5 of the Limitation Act refusing to condone the delay of 4 years in filing the said appeal against the decree in favour of respondent Ram Singh under Section 88 and 188 of the Rajasthan Tenancy Act, dtd. 10.7.1981, whereby the learned SDO, Head Quarter, Udaipur decreed the Revenue Suit No. 26/81- Ram Singh S/o. Kheem Singh vs. Smt. Man Bai and Ors. in respect of this suit land. The said decree of learned SDO was ex parte, since on 8.4.1981, the concerned advocate of the defendants pleaded 'no instructions' before the said Revenue Court of learned SDO and therefore, ex parte proceedings were drawn against the defendants. Being aggrieved by these impugned concurrent orders and decrees against the defendants-petitioners, the petitioners have filed the present writ petition under Article 227 of the Constitution of India in this Court on 1.7.1995. Thee decree holder Ram Singh is the cousin brother of late Kan Singh, husband of appellant No. 1 Man Bai.

(2.) Mr. L.R. Mehta, learned counsel for the petitioners urged that from the perusal of certified copies of order-sheets of the said first Revenue Court of learned SDO, it would appear that the suit was filed by the respondent Ram Singh S/o. Kheem Singh who was first cousin brother of deceased Kan Singh, husband of Smt. Man Bai, a physically disabled man, in the court of learned SDO, Girwa, Udaipur on 18.4.1979 claiming title of suit land on the basis of adverse possession. The learned counsel contended that from the order-sheet entry dtd. 29.7.1980, it would appear that on behalf of defendants No. 1 and 2, Advocate Sh. Jai Krishna Dave had appeared before the learned SDO, but on account of said Presiding Officer being on leave, the case was adjourned to 29.9.1980. However, in a post-script order of the same date 29.7.1980 itself, it was stated that the counsel for the plaintiffs was present and the counsel for the defendants was called by the Court at 10 A.M. and again at 4 P.M., but since he was not present, ex parte proceedings were drawn against the defendants No. 1 and 2 and the learned counsel for the defendant No. 3-purchaser expressed his desire not to file any written statement, though the defendants No. 1 and 2 had filed such written statement and thus, the case was fixed on 10.12.1980 for framing of the issues skipping the previously fixed date 29.9.1980 fixed in the presence of Sh. Jai Kishan Dave, who had appeared in the Court as per first of the order.

(3.) The learned counsel for the petitioner, Mr. L.R. Mehta urged that these two self-contradictory order sheets on the same date itself casts a serious doubt on the proceedings undertaken by the said Revenue Court of Sub Divisional Officer and different dated were fixed in this case on 29.7.1980 itself for different reasons and while in the first part, the learned Presiding Officer was said to be on leave and therefore, the case was adjourned to 29.9.1980, in another part it appears as if the learned SDO became available and the counsel for the defendants No. 1 and was summoned and he was shown as not present in the Court and the ex parte proceedings were drawn against the defendants No. 1 and 2, whereas in the first part of order sheet, presence of Mr. Jai Kishan Dave for defendants No. 1 and 2 was recorded. Mr. L.R. Mehta further brought to the notice of the Court that on 4.3.1981 during the pendency of the said trial with the learned SDO, Girwa, Udaipur, the case was transferred to the SDO, Head quarter, Udaipur as would appear from the signatures of SDO, Head Quarter, Udaipur on 4.3.1981 itself at the bottom of page 36 of the paper book, which is running order-sheets of both of the said Revenue Courts and after 4.3.1981, on 8.4.1981, the learned SDO (transferee Court) at Head Quarter, Udaipur noted that the counsel for the defendants No. 1 and 2 (no name of advocate shown in this order) had pleaded 'no instructions' on behalf of defendants No. 1 and 2 and therefore, again declared the proceedings to be ex parte against the defendants No. 1 and 2. The next date was then fixed on 23.4.1981 for framing of the issues, but on 23.4.1981, SDO was on leave and next date 8.6.1981, the Advocate for the plaintiff prayed for time and case was fixed on 8.7.1981. On 8.7.1981 everything happened on the same day in a snap shot manner and the learned SDO of transferee Court of SDO at Headquarters, Udaipur, not only framed issues, but also recorded the statement of the plaintiff himself and his witnesses, Homa and Ganga and also heard the arguments ex parte and kept the case for pronouncement of judgment and decree after two days on 10.7.1981. On 10.7.1981, the ex parte judgment and decree in favour of plaintiffs-respondents Ram Singh was passed by the learned SDO, Headquarter, Udaipur. Mr. L.R. Mehta brought to the notice of the Court graphically the insertions in the order sheet of 8.7.1981 by the said SDO by upper arrow marks at two places noting the alleged fact of framing of issues and hearing the ex parte arguments. He contended that since the defendants No. 1 and 2 were never informed about the transfer of their case itself from SDO, Girwa to SDO, Head Quarter, Udaipur nor the concerned Advocate gave them any notice about his pleading 'no instructions' before the learned SDO, Head Quarter, Udaipur and even thereafter, the defendants were prevented by sufficient cause in not appearing before the learned SDO. Head Quarter, Udaipur either on 8.4.1981 or thereafter and thus an ex parte decree was passed against them on 10.7.1981 which caused them serious prejudice and deprived them of their agricultural land of 12 bighas 6 biswas and the same therefore, deserves to be set aside.