The Court established that a lengthy delay in legal proceedings, coupled with failure to produce crucial evidence, justifies affirming prior decrees and rejecting subsequent appeals.

JUDGMENT

K. VINOD CHANDRAN, J.

Leave granted.

2. The appellant sought declaration of his ‘khatedari’ (tenant-occupant) on a land having a total extent of 158.3 bighas in Khasra numbers; more fully described in the plaint filed under Section 88 of the Rajasthan Tenancy Act, 1955¹[For brevity ‘Act of 1955’] and also sought for recovery of half of the total land unlawfully encroached upon by the defendants. The khatedari was claimed as a succession from his deceased father whose name was mutated as on 26.11.1961 in the revenue records. It was alleged that the defendants, Keshi, Bhura Ram and his son, Bhiya Ram had fabricated a sale deed based on which the encroachment was carried out. The suit was decreed as early as on 16.08.1975, the 1st defendant, Keshi having appeared and contested the case but eventually declared ex-parte for non-appearance. An appeal by Keshi long after, in the year 2006, was rejected on the ground of gross delay. In the second appeal filed, the Board of Revenue remanded the matter to the original authority which was affirmed by the High Court confirmed in an intra-court appeal.

3. The Board of Revenue found that though the 1st defendant was present, her presence was not consistent and there were no signatures or thumb impressions recorded to confirm her attendance. It was held that the original authority had provided no opportunity to adduce evidence after the order dated 18.01.1972 and despite the summons having not been returned as ‘served’, the trial court proceeded ex-parte declining her reasonable opportunity to defend the case. It was observed that the trial court failed to summon the sale deed and ignored the mutation as on 12.07.1963 which recorded the 1st defendant as a tenant. It was further held that the plaintiff having not executed the decree, the defendant was not aware of the decree passed especially when the mutation as of 1963 was altered in the name of the plaintiff only on 30.06.2010. The High Court found in favour of the defendant, especially noticing the fact that the 1st defendant was a widow who was also illiterate.

4. The learned Senior Counsel, Shri Vaibhav Gaggar appearing for the appellant took us through the proceedings before the trial court produced as Annexure P4 to argue that the 1st defendant had appeared before the trial court through a lawyer and was also present in person on many occasions when the matter was taken up. Defense evidence was led by examining two witnesses and later on, at the request of the Counsel appearing for the 1st defendant, summons was issued and after a period of two years it was specifically noticed that the 1st defendant appeared in person after which she was declared ex-parte and a decree passed. There was absolutely no satisfactory reason projected for the long delay in filing an appeal from the decree. It is argued that the contention taken up to substantiate the allegation of fraud was improved upon at every stage. At best, the contention before the Board of Revenue was that the plaintiff had manipulated the appearance of an Advocate and the 1st defendant had never appeared before court, which is belied by the proceedings of the trial court. Insofar as the possession is concerned, it is asserted that the appellant is in full possession of the entire extent of the property as of now and that is why there was no execution filed after the decree was passed. At the worst, the appellant for the sake of arguments was willing to concede to the status quo on possession as of today; which is asserted to be ful