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HIGH COURT OF UTTARAKHAND AT NAINITAL
Alok Singh, J.
Ravindra Pal Sing Negi and Another – Petitioners
Versus
Commissioner and Others – Respondent
WP (MS) No. 2609 of 2013
Decided On : 5.8.2014
Limitation Act - Condonation of Delay in Restoration Application - U.P. Z.A. & L.R. Act - Sections 209, 210 - Summary of Acts and Sections: Sections 209 and 210 of the U.P.Z.A. & L.R. Act were referenced and discussed by the court. These sections deal with the ejectment of persons occupying land without title and the consequences of failure to file suit for eviction. The court interpreted these sections in the context of the case and concluded that the respondents had matured bhoomidhari rights by way of adverse possession, as provided under section 210 of the Act.
Fact of the Case:
The case involved a suit for declaration to declare the plaintiffs as Bhoomidhar with transferable rights of the property, in question, due to adverse possession against the original defendant. The suit was decreed ex parte against the defendants, and the application for setting aside the ex parte judgment was dismissed due to delay.
Finding of the Court:
The court found that the application seeking condonation of delay in moving the restoration application was rightly rejected by both the lower courts. The court emphasized that the applicants seeking condonation of delay are duty bound to furnish a satisfactory explanation for remaining absent before the trial court on the date fixed, and as no satisfactory reason was provided, the delay was not condoned.
Issues: The issues involved the dismissal of the application seeking condonation of delay in moving the restoration application and the interpretation of Sections 209 and 210 of the U.P.Z.A. & L.R. Act.
Ratio Decidendi: The court's decision was based on the lack of a satisfactory explanation for the absence of the applicants before the trial court and the interpretation of Sections 209 and 210 of the U.P.Z.A. & L.R. Act in the context of the case.
Final Decision: The writ petition was dismissed, and the court refused to interfere with the impugned orders passed by the lower courts.
Alok Singh, J.
1. Present petition is filed assailing the judgment & order dated 26.09.2013 passed by Commissioner, Kumaon Division as well as order dated 10.05.2013 passed by Assistant Collector, First Class, Bhawar, Haldwani, Nainital rejecting the application under Section 5 of the Limitation Act seeking condonation of delay in moving restoration application under Order 9 Rule 13 CPC for setting aside ex parte judgment and decree dated 08.04.2010.
2. Brief facts of the present case inter alia are that plaintiff/respondents no. 3 and 4, herein, filed revenue suit no. 22/165 of 2002 in the court of Assistant Collector, First Class, Bhawar, Haldwani against Ganga Devi, (mother of petitioners & respondent no. 5, herein) as well as against the State Government and Gram Sabha, Bacchi Nagar, seeking declaration to the effect that plaintiff /respondents no. 3 and 4, herein, be declared as Bhoomidhar with transferable rights of the property, in question, in view of the fact that plaintiffs have matured their title by way of adverse possession against Smt. Ganga Devi – original defendant no. 3. During the pendency of suit, Smt. Ganga Devi expired, consequently, petitioners as well as respondent no. 5, herein, were substituted as legal heirs of Smt. Ganga Devi as defendants no. 3/1, 3/2 and 3/3 vide order dated 09.04.2003. Substituted LRs of Ganga Devi – original defendant no. 3 i.e. petitioners as well as respondent no. 5 filed their additional written statement. Substituted LRs of Ganga Devi – original defendant no. 3 i.e. petitioners and respondent no. 5 initially contested the suit, however, after some time they remained absent, consequently, vide order dated 07.11.2008 suit was directed to be proceeded ex parte and suit was ultimately decreed ex parte against the LRs of Ganga Devi – original defendant no. 3 vide judgment and order dated 08.04.2010.
3. On 15.02.2012, an application under Order 9 Rule 13 CPC for setting aside the order dated 08.04.2010 was moved before the trial court along with application seeking condonation of delay in moving the application under Order 9 Rule 13 CPC.
4. Vide impugned order dated 10.05.2013, learned trial court was pleased to dismiss the application seeking condonation of delay in moving the application under Order 9 Rule 13 CPC and consequently, application under Order 9 Rule 13 CPC also came to be dismissed.
5. Feeling aggrieved, petitioners preferred appeal before the Commissioner, Kumaon Division, which also came to be dismissed vide judgment and order dated 26.09.2013. Feeling aggrieved, petitioners have approached this Court by invoking Article 227 of the Constitution of India.
6. I have heard Mr. Sharad Sharma, Sr. Advocate assisted by Mr. N.K. Papnoi, Advocate for the petitioners, Mr. R.C. Arya, standing counsel for State of Uttarakhand and Mr. Narendra Bali, Advocate for respondents no. 3 and 4 and have carefully perused the record.
7. Mr. Sharad Sharma, learned senior counsel for the petitioners while referring to the judgment of Hon’ble Apex Court in the case of Gurudwara Sahib vs. Gram Panchayat, 2013 (2) U.D. 381 submitted that suit for declaration on the ground of adverse possession is not maintainable, therefore, ex parte judgment and decree is without jurisdiction.
8. Undisputedly, Ganga Devi – original defendant no. 3 also filed suit for possession against respondents no. 3 and 4, herein. Respondent no. 3 and 4, herein, filed present suit under Section 229B of U.P. Z.A. & L.R. Act against Gram Sabha and Ganga Devi for declaration, declaring them Bhoomidhar with transferable rights of the property, in question, on account of maturity of title by way of adverse possession against Ganga Devi – original defendant no. 3.
9. Sections 209 and 210 of the U.P.Z.A. & L.R. Act read as under:
"209. Ejectment of persons occupying land without title (1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in fo
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