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GAUHATI HIGH COURT
P. K. GOSWAMI, C.J. AND B. N. SARMA, JJ.
Fulbarunessa -Appellant
Versus
Assam Board of Revenue, Gauhati and another -Respondent
Civil Rule No. 136 of 1971
Decided On : 16-05-1973
LIMITATION - APPEAL - CONDONATION OF DELAY - ADMISSION OF APPEAL BEYOND TIME WITHOUT NOTICE TO THE OPPOSITE PARTY - RIGHT OF THE OPPOSITE PARTY TO OBJECT TO THE ADMISSION - COURT CAN REOPEN THE QUESTION AND DECIDE WHETHER THERE IS SUFFICIENT CAUSE FOR ADMITTING THE APPEAL OR APPLICATION BEYOND TIME.
Fact of the Case:
The petitioner filed an application under Article 226 of the Constitution challenging the order of the Assam Board of Revenue, which set aside the orders of the Sub-Divisional Officer and the Assistant Settlement Officer in a dispute case related to mutation of land records. The petitioner claimed that her mother purchased the land jointly with her brother, the respondent, and that she was in possession of her share of the land. The respondent resisted the application, and the Assistant Settlement Officer allowed the petitioner's application and ordered the issuance of a separate patta in her name. The respondent filed an appeal before the Settlement Officer, which was admitted but remained pending for several years. The appeal was then transferred to the Sub-Divisional Officer, who dismissed it on the ground that it was barred by limitation. The respondent then filed an appeal before the Board of Revenue, which allowed the appeal and set aside the orders of the Sub-Divisional Officer and the Assistant Settlement Officer.
Finding of the Court:
The court held that the Board of Revenue erred in holding that the question of limitation was finally decided when the Settlement Officer admitted the appeal. The court found that the Settlement Officer did not apply his mind to the question of limitation and that even if he had condoned the delay, ex parte, at the time of admission of the appeal, that could not have debarred the respondent-petitioner from agitating the question of limitation at the time of hearing. The court further held that the expiration of the period of limitation for an appeal gives rise to a valuable right in favor of the respondent, to real the order appealed against as binding and beyond challenge, as between the parties. When sufficient cause for excusing the delay is shown, discretion is given to the Court to condone the delay and admit the appeal. The existence of sufficient cause, or not filing the appeal in time, is a condition precedent that must be satisfied before a Court or tribunal can exercise its discretion to grant or refuse extension of time. If this condition is not satisfied, there is no room for exercising that discretion to excuse the delay.
Issues: 1. Whether the Board of Revenue erred in holding that the question of limitation was finally decided when the Settlement Officer admitted the appeal? 2. Whether the Settlement Officer had the jurisdiction to condone the delay in filing the appeal without notice to the opposite party? 3. Whether the respondent had a valuable right to treat the order appealed against as binding and beyond challenge, as between the parties, due to the expiration of the period of limitation for an appeal?
Ratio Decidendi: 1. The court held that the Board of Revenue erred in holding that the question of limitation was finally decided when the Settlement Officer admitted the appeal. The court found that the Settlement Officer did not apply his mind to the question of limitation and that even if he had condoned the delay, ex parte, at the time of admission of the appeal, that could not have debarred the respondent-petitioner from agitating the question of limitation at the time of hearing. 2. The court held that the Settlement Officer did not have the jurisdiction to condone the delay in filing the appeal without notice to the opposite party. The court found that the admission of the appeal by the Settlement Officer, without notice to the respondent, was a violation of the principle of natural justice and that the respondent was entitled, at the hearing, to object to the admission and the Court could reopen the question and decide whether there was sufficient cause for admitting the appeal or application beyond time. 3. The court held that the respondent had a valuable right to treat the order appealed against as binding and beyond challenge, as between the parties, due to the expiration of the period of limitation for an appeal. The court found that the expiration of the period of limitation for an appeal gives rise to a valuable right in favor of the respondent, to real the order appealed against as binding and beyond challenge, as between the parties.
Final Decision: The court quashed the impugned order of the Revenue Board and allowed the petition.
SARMA, J. :- This application under Article 226 of the Constitution is directed against the judgement and order of the Assam Board of Revenue dated 7-12-1970 passed in Case No. 332 RA/68, by which it set aside the order of the Sub-Divisional Officer, Barpeta dated 13-8-1968 passed in R. A. No. 293/65-66, as well as that of the Assistant Settlement Officer, Baghbor Circle dated 29-11-1961 passed in Dispute Case No. 2, which was affirmed by the Sub-Divisional Officer, Barpeta in the said appeal.
2. The Dispute Case No. 2 was initiated by the Assistant Settlement Officer, Baghbor Circle, during the last settlement operation on an application filed by the petitioner Mt. Fulbarunessa claiming mutation of her name in respect of 8 bighas and odd land in two dags, namely dag Nos. 213 and 233 of an annual patta of village Gobindapur, Mouzh Jabia, standing in the name of respondent No. 2 Pandit Ali. It was alleged by the petitioner in that petition that her mother Sarifunnessa along with her (Sarifunnessas) mother Mt. Jurfannessa and brother Pandit Ali jointly purchased the entire land of the patta from the original pattadar Isu Dewani under a registered sale deed dated 21-12-1934 and obtained possession, but the name of respondent No. 2 Pandit Ali alone was mutated in the patta after this purchase. All the same, it was alleged that the petitioners mother was in possession of her share (which is the disputed land) all along and later made a gift of the same in favour of the petitioner under an unregistered deed dated 3rd Falgoon. 1344 B. S. and accordingly the petitioner is in possession of the land since then by paying land revenue.
3. The respondent No. 2 resisted that petition. The Assistant Settlement Officer, after due inquiry allowed the application of the petitioner by his order dated 29-11-1961 and ordered issue of a separate patta in her name. Accordingly a separate patta, namely periodic patta No. 36 of village Gobindapur was issued in the name of the petitioner. Against the aforesaid order of the Assistant Settlement Officer, the respondent No. 2 filed an appeal before the Settlement Officer on 19-7-1962 with a footnote in the memorandum of appeal as below :-
"N. B. Petition for certified copy of the order appealed against was submitted within a week of the order but copies could not be obtained in that petition. Certified copy of the order has been received on 16-7-1962 on a fresh petition submitted on 11-6-1962 and this appeal is not therefore time barred."
The Settlement Officer admitted the appeal on that very day and it remained pending in his file till 9-9-1965, on which date he transferred the appeal to the Sub-Divisional Officer, Barpeta, as the settlement operation in Baghbor Circle was closed with effect from 1-3-1963. The learned Sub-Divisional Officer, on hearing both the parties, dismissed the appeal on merit as well as on the ground that it was barred by limitation.
4. Being aggrieved by the order of the Sub-Divisional Officer, the respondent No. 2 preferred an appeal before the Board of Re-venue under Section 147 of the Assam Land and Revenue Regulation. In deciding the appeal, on the question of limitation the Board observed :
"As regards the question of the appeal being time barred, as mentioned by the S.D.O., Barpeta, we are inclined to agree with the submission of the Advocate for the appellant that this point was already decided when S.O., Kamrup admitted the appeal in 1962."
On merit also the Board reversed the finding of the Sub-Divisional Officer. In the result the appeal was allowed and the orders of both the Sub-Divisional Officer and the Assistant Settlement Officer were set aside.
5. Mr. N.M. Lahiri, the learned counsel for the petitioner contended before us that the learned Board of Revenue committed an error in law, apparent on the face of the record. In reversing the finding of the Sub-Divisional Officer on the question of limitation by holding that it was already decided by the Settlement Of
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