JUDGMENT :

1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent Nos.2 and 4. learned Advocate Mr. D.K. Puj waives service of rule on behalf of the respondent No.1.

2. This petition under Article-226 of the Constitution of India is filed is against the order dated 22-06-2016 passed by the Deputy Collector, City Parnt-Surat in RTS Appeal No.367 of 2014.

3. At the outset, learned Advocate for the petitioners has submitted that though the petitioners have preferred petition directly before this Court despite their being remedy available to challenge the order before the higher forum. However, as the proceeding are initiated and order is passed beyond period of limitation prescribed, passing of the order by the Deputy Mamlatdar is without jurisdiction.

4. Learned Advocate for the petitioners has submitted that the issue is pertaining to Mutation Entry No.859 of Revenue Record of Village- Bamroli, which was certified on 26-04-2013. The respondent aggrieved by the Mutation Entry, filed an Appeal on 11-12-2014, which came to be allowed by the impugned order. Learned Advocate for the petitioners has submitted that for preferring an Appeal under the provision of Bombay Land Revenue Code, Rule-108(5) of the Gujarat Land Revenue Rules, prescribed limitation of 60 days and as the present Appeal was preferred beyond the period of limitation, it was required to be accompanied with an application for condonation of delay. It is submitted that neither Appeal preferred by the private respondent was accompanied with an application for condonation of delay nor the memo of Appeal contained any cogent reasons for condoning the delay. It is submitted that unless the delay is condoned by separate order, the jurisdiction will not rise for the respondent-the Deputy Mamlatdar to adjudicate and therefore, the impugned order is without jurisdiction.

5. Learned Advocate for the respondent has taken this Court to an Appeal Memo and the proceedings before the Deputy Mamlatdar to contend that no application for condonation of delay has been filed and in fact the petitioners had taken objection with regard to the delay.

6. As against this, there does not appear to be any Affidavit in reply to controvert the contention of the petitioners, however, learned Advocate appearing for the respondent has vehemently submitted that the petitioners have an alternative efficacious remedy and therefore, the petition should be dismissed on the very ground. Learned Advocate has submitted that the Deputy Collector has taken into consideration various factual aspects including the proceedings, which had culminated in Civil Court and therefore, was justified in cancelling Succession Mutation Entry No.859.

7. Learned Advocate for the petitioners in rejoinder has referred to and relied upon the decision of this Court in case of Dudhiben Muljibhai Patel and another V/s. State of Gujarat and others reported in (2016) 2 GLR 1786. The petitioners have also relied upon decision of the Apex Court in case of Ragho Singh v/s. Mohansinh reported in (2001) 9 SCC 717 to emphasis that for condoning of delay, application is must for exercising powers under Section-5 of the Limitation Act.

8. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the issue pertains to Mutation Entry No.859 posted on 07-03-2013 and certified on 26-04-2013 in connection with the land bearing Survey No.118, Block No.177 of Village-Bamroli, Taluka-Surat, which was posted on account of the death of the original owner on 30-03-2012 in favour of the petitioners being their legal heir. It appears that aggrieved by the posting and certification of the aforesaid Entry, private respondent preferred RTS Appeal No.367 of 2014 on 11-12-2014.

9. Considering the relevant provision for preferring an Appeal under the Bombay Land Revenue Code being Section-205/206 read with Rule- 108(5) of the Gujarat Land Revenue Rules, period