DHUNA RAM AND ORS Vs. JAGDEV AND ORS

JUDGEMENT

(1.) Instant intra-court appeal has been filed against the order of learned Single Judge dated 10th August, 2011 upholding the order of Board of Revenue dated 1st April, 2009.

(2.) As it reveals from the record, the dispute was in respect of Khasra No. 104 ad measuring 23 Bigha & 6 Biswa and a part of Khasra No.124, 13 Bigha 13 Biswa of land in District, Jhunjhunu. A revenue suit bearing No.130/1991 was filed before the court of Assistant Collector, Jhunjhunu by the present appellants impleading the respondents herein as party defendants for partition of their holdings based on their actual occupation. According to the appellants, the parties were duly served and one of the defendant Naurang Ram (defendant No.3) appeared through his counsel and after hearing the parties, the Assistant Collector vide judgment dated 28th June, 1991 and decree dated 6th July, 1991 decreed the suit ex parte filed by the appellants and directed to carry out appropriate changes in the revenue records. After almost a decade, an appeal came to be filed by the respondents before the Revenue Appellate Authority bearing No.55/2001 accompanied with the application seeking condonation of delay U/S. 5 of the Limitation Act. However, the learned Revenue Appellate Authority heard the matter on merits and set aside the judgment and decree passed by the revenue court vide order dated 30th June, 2003 and according to the learned counsel for the appellants, no order was passed on the application filed U/S. 5 of the Limitation Act of the respondents, who were appellants before the Revenue Appellate Authority seeking condonation of delay. However, second appeal came to be preferred by the appellants before the Board of Revenue and a legal question was pertinently raised regarding non-disposal of the application U/S. 5 of the Limitation Act filed by the respondents, but still taking note of the proceedings of the revenue court i.e. court of Assistant Collector, Jhunjhunu the Board of Revenue after holding that parties were not given a reasonable opportunity of hearing and service was not affected on the defendants as per the requirement of law, considered it appropriate to set aside the judgment and decree and remitted the matter to the court of Assistant Collector, Jhunjhunu with the direction to afford opportunity of hearing to the parties and decide the matter on merits in accordance with law.

(3.) At this stage, a writ petition came to be filed by the petitioner-appellants which was dismissed by the learned Single Judge vide order dated 10th August, 2011. As it reveals from the order itself that the learned Single Judge was convinced on the factual matrix of the matter that reasonable opportunity of hearing was not afforded to the defendants by the court of Assistant Collector, Jhunjhunu and their rights have been adversely affected by the order impugned and the matter was rightly remitted back to the court of Assistant Collector, Jhunjhunu to examine on merits after affording opportunity of hearing to the parties and to file written statement by the defendants. It was further brought to the notice of the learned Single Judge that after the matter was remitted back to the revenue court of Assistant Collector, Jhunjhunu, written statements were filed and partial evidence has been led by the parties.