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Balmukand Vs. the Board of Revenue for Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 221 of 1961
Judge
Reported inAIR1965Raj38
ActsLimitation Act, 1908 - Sections 3 and 29(2); Rajasthan Act - Sections 228; Rajasthan Tenancy Act, 1955; Constitution of India - Article 226
AppellantBalmukand
RespondentThe Board of Revenue for Rajasthan and ors.
Appellant Advocate Sagarmal, Adv.
Respondent Advocate Amrit Raj, Dy. Govt. Adv. for Nos. 2 and 3
DispositionApplication allowed
Excerpt:
.....the relevant time, clearly laid down that :where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor; in this state of the law, it clearly seems to us that even if the objection as regards limitation was not taken before the commissioner, the appeal if filed after the period of limitation, would have to be dismissed on that ground alone. we may further point out that the proper approach to a question like that before a second appellate court is whether the plea of limitation raised before it was a pure question of law or a mixed question of law and fact. 6. the facts of this case, however,..........the copies, the appeal was incompetent and bound to be dismissed. the learned members of the revenue board seem to have entertained the opinion that, be the provision of limitation what it may, that could not deprive the court of its authority to decide an appeal and consequently it was open to the appellate authority to have entertained the same. with all respect to the learned members, we are unable to uphold this view as correct. if a suit or an appeal is barred by time, therea is a clear mandate of the legislature in the shape of section 3 of the limitation act that such suit or appeal shall be dismissed, and this consequenca broadly speaking does not depend upon an objection to that effect being raised by the aggrieved party; but it has been further peremptorily laid down that.....
Judgment:

Modi, J.

1. This is an application for writ under Article 226 of the Constitution, against a judgment and order of the Board of Revenue dated the 28th November, 1960.

2. It is unnecessary to state the facts leading up to this writ application at any length, because, in our opinion, it can be finally disposed of on a short point relating to limitation. Suffice it to state that the dispute is about Khatedari rights with respect to field No. 302 measuring 105 Bighas odd in village Rampura, Tehsil Itawa, District Kotah. One Mst. Gendi was admittedly the lastholder of this field as 'Muafidar'. She appears to have died some time in 1945-46. The petitioner's case is that he was entered as a Sub-tenant of this field in the revenue papers right from 1945-46. It further appears that an inquiry was made by the revenue department as to who the heirs of the deceased Mst. Gendi were if any. The Commissioner of Kotah eventually found that there was none, and, therefore, the grant was resumed to the State.

The petitioner then made an application for the grant of Khatedari rights to him on the 26th August, 1957. This application was accepted by the Sub Divisional Officer by his order dated tha 12th May, 1958. It further appears that Birdilal respondent had also applied for allotment of this land on the 3rd December, 1954, and on an inquiry made by him, the Collector informed the said respondent on the 4th July, 1958, that the land had been entered as Khatedari of the petitioner. Thereupon he (Birdilal) filed an appeal before the Commissioner, Kotah, which was allowed on the 2nd September, 1959. A second appeal was then taken by the petitioner to the Board of Revenue which was dismissed by its order dated the 28th November, 1960, and it is this order which is being challenged before us.

3. Two points appear to have been raised before the Board. The first is that Birdilal respondent before it had no right to prefer an appeal against the order of the Sub-Divisional Officer dated the 12th May. 1958, The second was that in any case the appeal was barred by time, and, therefore, it should have been dismissed by the Commissioner on that ground alone. Both these points were repelled by the Board. As to the first, it was of the opinion that Birdilal was and could be deemed to be an interested person. As to the second, we should like to reproduce its finding in its own words which is as follows:

'The objection as regards limitation was not taken in the lower Court and we find no adequate ground to allow it before us. A reference has been made in this connection to Section 3 of the Indian Limitation Act. Suffice to observe that it has application only to those appeals which are Included within the 1st Schedule of the Act. Besides, the effect of this section is not to deprive a Court of its jurisdiction to decide an appeal. Hence the decision of a Court allowing an appeal which may be barred by limitation is not vitiated by tenant (sic) or jurisdiction'.

It is strenuously contended before us that the opinion formed by the learned Members of the Board on the question of limitation is palpably and manifestly erroneous and should be quashed being based on an imperfect appreciation of the law contained in Section 29 of the Limitation Act,

4. Now Section 29(2) of the Limitation Act, as it stood at the relevant time, clearly laid down that :

'Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor; in that Schedule.'

and it was further provided that for the purposes of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained In Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law and the remaining provisions of this Act shall not apply.

5. Now, there can be no doubt that the Rajasthan Tenancy Act, 1955 (Act No, 3 of 1955) under which falls the main proceeding, out of which this writ application has arisen, is a special Act. It is also beyond question that this Act prescribes limitation for various proceedings including appeals under the Act; (See for example Section 228) which provision is not contained in and therefore different from that provided in the Limitation Act. That being so, we are definitely of the view in disagreement with the Board that Section 29 of the Limitation Act cannot but apply to an appeal filed under this Act and by virtue of the deeming provision contained therein, it must further follow as if such period was prescribed in the, first schedule of the Limitation Act itself and this section also enacts that Section 3 of the Limitation Act would be applicable to such proceedings. It would be there- fore hardly correct to say that Section 3 does not apply to such appeals.

Then the effect of. Section 3 is that where a suit or an appeal or an application is made after the period of limitation prescribed therefor, it shall bedismissed, although limitation has not been set up as a defence. In this state of the law, it clearly seems to us that even if the objection as regards limitation was not taken before the Commissioner, the appeal if filed after the period of limitation, would have to be dismissed on that ground alone. We may further point out that the proper approach to a question like that before a second appellate Court is whether the plea of limitation raised before it was a pure question of law or a mixed question of law and fact. If it was a question of the former kind, there would be no escape from dismissal, while if it was of the latter kind the plea of limitation may be rejected because the Court might not be prepared to go into the factual aspect of the plea at that stage.

6. The facts of this case, however, clearly disclose that the matter of limitation is a pure question of law, end no further investigation into facts was or is necessary. The order of the Sub-Divisional Officer was passed on the 2nd May, 1958. Birdilal's appeal before the Commissioner was filed on the 28th October, 1958. The period of limitation for such an appeal is provided by Section 228 of the Rajasthan Tenancy Act and the relevant provision in that section reads as follows:

'No appeal to the revenue appellate authority shall be brought after the expiration of sixty days from the date of the decree or order complained of.'

It deserves to be noted at this place that this section does not contain any provision analogous to Section 5 of the Limitation Act whereby the period prescribed could have been extended provided sufficient cause therefor was shown by the appellant. The position, therefore, is that if an appeal was filed after the prescribed period of limitation, making allowance, of course, for the time taken in obtaining the copies, the appeal was incompetent and bound to be dismissed. The learned Members of the Revenue Board seem to have entertained the opinion that, be the provision of limitation what it may, that could not deprive the Court of its authority to decide an appeal and consequently it was open to the appellate authority to have entertained the same. With all respect to the learned Members, we are unable to uphold this view as correct.

If a suit or an appeal is barred by time, therea is a clear mandate of the Legislature in the shape of Section 3 of the Limitation Act that such suit or appeal shall be dismissed, and this consequenca broadly speaking does not depend upon an objection to that effect being raised by the aggrieved party; but it has been further peremptorily laid down that whether such an objection is raised or not, the Court-shall dismiss the same. That being so, once we come to the conclusion that the appeal in this or any other given case is undoubtedly barred by time, there is an end of the matter; and the Courts cannot entertain or decide it on the merits.

It also seems to us that no question of jurisdiction as such is involved in any decision dismissing a suit or an appeal on the ground of limitation, for when a Court so acts, it doubtless acts in the exercise of its own jurisdiction. Our attention was drawn by the learned Deputy Government Advocate to the revisional powers of the Board under Section 230 of the Rajasthan Tenancy Act but the plain language of that section shows that these powers are attracted only where an appeal does not lie to the Board or to a civil Court under Section 239, and under certain other conditions which it is not relevant to notice for the purposes of the present case. It is also conceded before us that a second appeal in this case would have lain to the Board under Section 224 of the Act, and, therefore, the revisional powers of the Board are clearly excluded in a case of this kind.

7. The position, therefore, to which we come is that the Commissioner had no authority to hear the appeal on the merits and that the Revenue Board was in error in holding that the plea of limitation could not be given effect to as an objection as to limitation had not been raised before the Commissioner. This, in our opinion, amounts to a manifest error of law on the face of the record which inevitably attracts our certiorari jurisdiction.

8. For the reasons mentioned above, we allow this writ application set aside the orders of the Revenue Board and the Commissioner and direct that the order of the Sub-Divisional Officer shall stand restored. There will be no order as to costs in this Court.


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