Rajindar Sachar, J.
1. The proceedings under Section 25(2) of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1,952, (hereinafter to be called 'the Act') were started with a claim of the petitioner that certain properties were his personal properties. By a decision of 23-3-64 the Additional Collector held certain properties to be the personal properties of the petitioner. The State being aggrieved, filed an appeal under Section 39 of the Act before the Board of Revenue. The appeal was filed on 19-5-65.
2. Section 39(1) provides for an appeal to be filed within 90 days from the date of the decision. When the appeal came up before the Board of Revenue the petitioner raised an objection that the appeal was filed beyond the prescribed period The defence of the State was that though the Older undoubtedly was passed on 23-3-64 and the presence of Bhawani Shanker Upadhyay, the Legal Adviser (Jagir) was recorded in the order sheet, he was in fact not present and the Government came to know of the decision by the Additional Collector (Jagir) only on 12-3-65. In support of the defence a letter from Shri Bhawani Shanker Upadhyay written to the Assistant Secretary to the Government dated 25-11-66 was relied upon in which Mr. Upadhyay had stated that he was not present at the time of announcement of the order by the Additional Collector (Japir). An affidavit in support of this plea was also produced of Rameshwar Prasad, Accountant in the Revenue Department. The Board of Revenue referred to the record of the case and found that the case was directed to be healed for arguments on 15-1-64. It was however further adjourned o 29-1-64 and then to 26-2-64, as 26-2-64 was a holiday the judgment was adjourned and it was announced on 23-3 64, On the said date the presence of Mr. Upadhyay, the Legal Adviser (Jagir) is noted; Though the arguments were heard on that day, the matter was adjourned for judgment on 23-3-64 The Board of Revenue has come to the conclusion that though the presence of Legal Adviser (Jagir) is recorded in the order this does not mean that he was present on 23-3-64 but only shows that he was present when the arguments were heard. This is a question of assessment: from the material on record and sitting in Article 226 we cannot re-appraise the same. The Board of Revenue has also referred to the fact that; three certified copies of the impugned order dated 23-3-64 had been dispatched to the Government vide letter No. 632 dated 13-3-65 by the Additional Collector (Jagir). On this material the Board of Revenue has come to the conclusion that the appeal whim was presented on 19-5-65 should be treated to be within time.
3. Mr. Mridul, learned Counsel for the petitioner, contends that even if the date 12-3-65 was to be accepted as the date on which the certified copies were sent to the Government there was no justification for a further delay of 60 days when the appeals were presented because according to the counsel each day's delay must be explained in order to get the benefit of Section 5 of the Limitation Act. Mo doubt the appeal has not been filed within 90 days, the justification for the appeal hiving filed late by the Government has to be given The justification pleaded is that it came to know only oh 12-3-65 when the orders were sent and hence it had a sufficient cause for the delay in filing the appeal. The absence of the Lesal Adviser on the date of the announcement of judgment his been accepted by the Bjard of Revenue. It is true that the Government is expected like any other private litigant to be vigilant in filing the appeal. The objection had been raised before the Board of. Revenue which after going into the matter however has come to a conclusion of fact that there are sufficient grounds for condoning the delay in filing the appeal.
4. As stated in Ebrahim Aboobakar v. Custodian General : 1SCR696 that whether an appeal is competent or whether a party has locus stands to prefer it and whether it has been preferred in proper form and within the time prescribed are all matters for the decision of the appellate court so constituted and even if it decides this question wrongly a writ cannot be issued against it for quashing the order. Objection to sufficiency of material on which a finding has been given cannot be gone into, in these proceedings as we are not sitting as a court of appeal. On the appreciation of material placed before the Board, conclusion of fact has been drawn by the Board of Revenue as the appellate authority, the last authority under the statute and as there is no excess of jurisdiction we land no justification to interfere with its order.
5. There is another reason also why we feel that this case does not call for any interference. After the decision on limitation by the Board of Revenge the matter was taken up on merits by the Board of Revenue in which it came to the conclusion that the State's appeal should be allowed and the matter remanded. We find from the order of the Board of Revenue dated 16-1-70 that it has recorded that the present petitioner had no objection if the So ate appeal is accepted and the case is remanded for re determination of the question of personal property. The petitioner thus is a party to the order of remand and to permit him to contend that the main appeal should have been dismissed by the Board amounts to taking inconsistent plea and cannot be permitted in these equitable proceedings Reference to the said order clearly shows that the practitioner is also being given an opportunity to produce further evidence in support of his claim. The matter therefore has still to be finally decided en merits by the authorities. We therefore do not find that there has been any substantial or grave miscarriage of justice as to call for the interference by this Court.
6. The result is that the petition fails and is dismissed but there will be no order as to costs.