Ragho Singh Vs. Mohan Singh & Ors.
EmailAppeal: Civil Appeal No. 4985 of 1997
Petitioner: Ragho Singh
Respondent: Mohan Singh & Ors.
Apeal: Civil Appeal No. 4985 of 1997
Judges: S. SAGHIR AHMAD & D.P. WADHWA, JJ.
Date of Judgment: May 04, 2000
Head Note:
CONSTITUTION
Article 226 – Sale by one of the co-sharer – Another co-sharer filing suit for pre-emption – Said suit decreed – Appeal against that decree, though barred by time, allowed by appellate authority without application for condonation – Revision unsuccessful – High Court in writ petition, setting aside the orders – Justification. Held that since, appeal was barred by time, High Court was justified in setting aside the orders. Appeal dismissed.
(Para 6)
JUDGEMENT:
ORDER
1. Haribansh Singh, original defendant no. 5 who was one of the co-shares of Plot No. 1142, Khata No. 185 at Village Beoria, District Saran has executed a sale deed in favour of the appellant. Respondent no. 4 claimed himself to be a co-sharer, filed a suit for pre-emption in which Haribansh Singh and other persons were arrayed as defendants. The said suit was decreed by the Deputy Collector by his judgment, dated 28.3.1977 against which the appellant filed an appeal before the Additional Collector, Saran, which was allowed by judgment dated 10.7.1979.
2. It may be stated that the appeal was filed beyond time by 10 days but an application under Section 5 of the Limitation Act for condonation of delay was not filed.
3. Respondent no. 4 thereafter filed a revision before the Board of Revenue but the revision was dismissed on 29.12.1979. A writ petition filed thereafter by the respondent no. 4 was allowed by the Patna High Court on 10.3.1995 and it was held that the appeal which was filed beyond time by 10 days ought to have been dismissed on the ground of limitation as no application was filed for condonation of delay as contemplated by Section 5 of the Limitation Act. The L.P.A. filed thereafter was also dismissed on 24.2.1997.
4. During the pendency of the L.P.A., Haribansh Singh, the original vendor, died. An application for substitution was filed but the learned High Court was of the view that the vendor was not a necessary party in a suit for pre-emption and consequently, his heirs were not brought on record.
5. An application has been filed in this Court for deletion of the name of the deceased respondent no. 1 The application is taken on board and is allowed. The name of the respondent no. 5 is deleted.
6. We have heard learned Counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs.
1. Haribansh Singh, original defendant no. 5 who was one of the co-shares of Plot No. 1142, Khata No. 185 at Village Beoria, District Saran has executed a sale deed in favour of the appellant. Respondent no. 4 claimed himself to be a co-sharer, filed a suit for pre-emption in which Haribansh Singh and other persons were arrayed as defendants. The said suit was decreed by the Deputy Collector by his judgment, dated 28.3.1977 against which the appellant filed an appeal before the Additional Collector, Saran, which was allowed by judgment dated 10.7.1979.
2. It may be stated that the appeal was filed beyond time by 10 days but an application under Section 5 of the Limitation Act for condonation of delay was not filed.
3. Respondent no. 4 thereafter filed a revision before the Board of Revenue but the revision was dismissed on 29.12.1979. A writ petition filed thereafter by the respondent no. 4 was allowed by the Patna High Court on 10.3.1995 and it was held that the appeal which was filed beyond time by 10 days ought to have been dismissed on the ground of limitation as no application was filed for condonation of delay as contemplated by Section 5 of the Limitation Act. The L.P.A. filed thereafter was also dismissed on 24.2.1997.
4. During the pendency of the L.P.A., Haribansh Singh, the original vendor, died. An application for substitution was filed but the learned High Court was of the view that the vendor was not a necessary party in a suit for pre-emption and consequently, his heirs were not brought on record.
5. An application has been filed in this Court for deletion of the name of the deceased respondent no. 1 The application is taken on board and is allowed. The name of the respondent no. 5 is deleted.
6. We have heard learned Counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs.
