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Saheb Ram v. Board Of Revenue Alld And Others - WRIT - B No. 48301 of 2005  RD-AH 1732 (23 July 2005)
COURT NO. 40
CIVIL MISC. WRIT PETITION NO. 48301 OF 2005
Board of Revenue and others........................Respondents.
Hon. S.N.Srivastava, J.
Present petition has been instituted canvassing the validity of the order dated 4.3.2005 passed by a Division Bench of Board of Revenue whereby review preferred by petitioner against the judgment dated 30.7.1987 in Second Appeal No. 25 Z of 1971-72 was dismissed holding that inordinate delay of about 14 years has not been satisfactorily explained by the petitioner and further that there was no error apparent on the face of record warranting interference.
Certain facts forming background to the first inning of litigation may be noticed and they are that Mangroo initially instituted a suit being suit no. 221 on 14.8.1967 under section 229 B of the U.P.Z.A. & L.R. Act for the relief-seeking declaration of his Sirdari rights in relation to plot no. 658 admeasuring 1 Bigha, 14 Biswas and 5 Biswansi predicated on the ground that he had been in possession over the land otherwise than in accordance with law and had matured his title as envisaged in section 210 of the U.P.Z.A.& L.R. Act. It would further appear from the record that Nageshwar who was arrayed as defendant had already executed a sale deed on 7.10.1965 in favour of Smt. Satyabhama, who was arrayed as Opp. Party no.3 and had been brought on record on her own motion. It would also appear from the record that Smt. Satyabhama repudiated the plaint allegations and also possession of the petitioner over the land claimed that defendant Nageshwar Pandey had executed sale deed in her favour on 7.10.1965 and ever-since then she had been in actual physical and cultivatory possession over the land in question. In this connection, it may be noticed that parties adduced oral evidence in support of their respective cases. Smt. Satyabhama examined Nageshwar Pandey. The matter culminated in judgment-dated 10.5.1970 by which the trial court decreed the suit but the judgment and decree of the trial court suffered reverses at the end of Addl. Commissioner who, vide judgment and decree dated 22nd Sept 1971, set aside the judgment and decree passed by trial court. It would further transpire that the lower appellate court recorded a finding to the effect that entry relied upon by the plaintiff pertaining to the years between 1965 to 1968 could not be believed on the basis of entire evidence on record as well as on the ground that in the entry ''Kabiz' in the remark column, the name of Mangroo was not recorded with P.A. 10. Besides, it has also been held that there was no reference of diary of issuance or service of P.A. 10 on the landholder. In the ultimate analysis, regard being had to the oral evidence of the parties, the lower appellate court rightly dismissed the suit. The Second appellate court also dismissed the second appeal filed by Mangroo vide judgment dated 30th July 1987 and thereafter, long-raging dispute was given final burial.
The facts forming background to the second inning of the litigation are thus. It would transpire from the record that the petitioner claimed to have a Will executed in his favour by Mangroo on 24.7.1996 in respect of plot no. 658 admeasuring one Bigha, 14 Biswas and 5 Biswansis only i.e. the property in suit and the remainder property of Mangroo was not delineated in the Will under reference and instead, it has been mentioned that the same will be inherited by his natural heirs. It further transpires from the record that on the basis of the same, petitioner preferred a review before the Board of Revenue studded with application to condone the delay in filing review. Together with this application, an affidavit of Saheb Ram was also filed. This review application climaxed with dismissal.
Learned counsel for the petitioner argued across the bar that the petitioner is a legatee in whose favour registered Will was executed by Mangroo in 1996 and as such the review application was rightly filed by the petitioner on 29.5.2001 along-with an application for condonation of delay on the ground that Mangroo had been spirited away by death. It was further argued that the court below has not taken the affidavit into reckoning filed by the petitioner. He also placed credence on a decision reported in 2005 Vol. 2 JCLR p 111, which is a decision of learned Single Judge of this case. While referring to paragraphs 7 and 8 of the said decision, the learned counsel stated across the bar that the delay in filing review was liable to be condoned. It was further stated that non-application of mind to the averments explaining delay was writ large and by this reckoning, the order is liable to be quashed.
I have bestowed my anxious considerations to the submissions advanced across the bar and also on the materials on record. From a perusal of the affidavit filed in support of the application for condonation of delay, it is pellucid that the delay spanning 14 years i.e. between 30th July 1987 to 21.5.2001 has not been satisfactorily explained and only vague allegations have been couched initially about the death of Sri Laji Sahai, Advocate who was counsel in the year 1987 when second appeal was argued and decided on merits. It is worthy of notice that at that time, the petitioner was no-where in the reckoning. According to the own case of the petitioner, the Will was executed in his favour in respect of plot in question in the year 1996. What is note-worthy is that when the matter attained finality in the year 1987 and Mangroo thereafter had not chosen to take the matter further either by way of filing review or writ petition before the Board of Revenue or before this Court, he had no title to the property in question inasmuch as he was not tenure holder on the date of suit. Paragraph 4 of the affidavit may also be noticed in which the petitioner has minced no words to admit that second appeal was dismissed by the Board of Revenue but order was not communicated to the petitioner. In this regard, it may be noticed that the question of communication to petitioner did not arise as he was no-where in picture at all in the year 1987. Here, it may also be noticed that there is no allegation that Mangroo was not heard in the second appeal or any communication was not served to Mangroo. As a matter of fact, Mangroo filed second appeal in the year 1971 and slugged out the matter upto the stage of second appeal, which culminated in dismissal on merit in the year 1987. The possibility cannot be ruled out that the petitioner with a view to defeating the rights of the lady Satyabhama, maneuvered for procuring the spurious Will for the purpose of this case. It is also worthy of notice that the petitioner unconscionably took five years' time from the date of alleged execution of the Will, to prefer review for which no plausible explanation is forthcoming. In my considered view, the Division Bench of Board of Revenue rightly converged to the conclusion that the explanation given by the petitioner was highly unsatisfactory. It may be noticed that in the Board of Revenue when dates are set down, notices are served and normally on every date the parties appear before the Board of Revenue on the date of hearing. There is no indicium on record to attest to the fact that Mangroo was not present on the date of hearing or he had no awareness of the judgment. Moreover, there is also nothing on record to manifest that Mangroo had initiated any steps during his life towards challenging the order passed by the Board of Revenue.
In the above perspective, I am of the firm view that the reasons assigned by the Board of Revenue and lower appellate court are well-knit, lucid and convincing and the Board of Revenue rightly held that the review was time barred and no explanation explaining this inordinate delay about 14 years was furnished by the petitioner.
It may also be noticed that review could only be filed by a person who was a party to the proceeding within 30 days from the date of judgment. It is established on record that the petitioner was not a party to the suit or upto the stage of second appeal. Besides, no proceeding was pending in any court on the date on which petitioner procured a Will in his favour. The review filed by petitioner was rightly dismissed being highly belated.
Coming to the decision reported in 2005 Vol. 2 JCLR p 111, which is a decision of learned Single Judge of this case, the learned counsel laid much emphasis on paragraphs 7 and 8 of the said decision, and canvassed that the delay in filing review was liable to be condoned. I have scanned the decision and am of the view that the decision is unavailing inasmuch as the decision relied upon pertains to a dispute stemming from restoration and cannot be called in aid in a matter pertaining to review in the facts of the present case.
As a result of foregoing discussion, the petition fails and is dismissed as devoid of merits.
July 23, 2005.
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