RAJASTHAN HIGH COURT

                  Sent Kaur

                  Vs.

                  Board of Revenue

                   Civil Special Appeal No. 1083 of 1997
                  (Rajesh Balia and Sunil Kumar Garg, JJ.)

                  17.10.2003

                  JUDGEMENT

Rajesh Balia, J.

1. Legal representatives of respondent No. 13 have been served. None have opposed.
The application dated 14-7-1999 is therefore, allowed. The name of respondent No. 13
Murti D/o Gurdutt Singh and Wife of Gurdev Singh be deleted and in place of her
name the legal representatives named in the application be substituted as respondent
No. 13/1 to 13/4.

2. We have heard learned counsel for the parties.

3. This appeal is directed against the judgment of learned Single Judge dated 16-9-
1997 dismissing the Writ Petition No. 3779/1989 filed by the appellant.

4. A preliminary decree was passed in the suit filed by the respondents for partition on
17-8-1971 which was confirmed in first appeal. A second appeal was filed before the
Board of Revenue and the Board of Revenue vide its order dated 30th Nov., 1981
confirmed the preliminary decree for partition. No further proceedings were taken to
challenge the said order dated 17-8-1971 while the appeal was pending before the
Board of Revenue and final decree for partition was also passed.

5. It is only after execution was laid, the first appeal was preferred by the present
appellants in December 1983 against the final decree with an application for
condoning the delay alleging that they had no knowledge about the decree until
notices of execution proceedings were received for evicting them from the property.

6. The learned Revenue Appellate Authority vide its judgment dated 20th March,
1984 did not accept the explanation furnished by the appellants that he had no
knowledge about the decree earlier than the proceedings for execution were taken out.
We have also taken notice that the preliminary decree has remained unchallenged for
long time and Board of Revenue has passed an order dated 13- 11-1981. He has filed
the appeal against the preliminary decree only on 17-9- 1976. In that circumstances, it
is not possible to believe that he has no knowledge about final decree passed on 8-10-
1971.

7. In these circumstances, the appeal against final decree preferred after such an
inordinate delay was not entertained on the ground of limitation and the same was
dismissed. The Board of Revenue dismissed the second appeal against the judgment
dated 20th March, 1984 in the first instance on 11-4- 1989. While dismissing the
appeal the Board of Revenue has observed that the appellant has not preferred any
application for explanation of 12 years delay in filing the appeal.

8. The order dated 11-4-1989 passed by the Board of Revenue was challenged by way
of filing writ petition before this Court. The said writ petition was disposed of on 25-5-
1989 with the observations that the petitioners may move a review application before
the Board of Revenue, if the fact stated is alleged to be incorrect.

9. Thereafter, the petitioners moved a review application before the Board of Revenue
which was dismissed by the Board of Revenue on 7-9-1989. The petitioners again
preferred writ petition No. 3779/1989 challenging the order passed in the review
application out of which this appeal has arisen.

10. The learned Single Judge has found no merit in the writ petition and has dismissed
the same. As per the order of the learned Single Judge, the contention raised before
him was that no mention has been made in the order of Board of Revenue about the
application under Section 5 of the Indian Limitation Act. The said contention was not
countenanced by the learned Single Judge and it was noticed that though the order did
not specifically mention that the application was moved by the petitioners under
Section 5 of the Indian Limitation Act, but the same appears to have been taken into
consideration by the Board of Revenue while dismissing the review application. For
this purpose, it referred to the Board of Revenue's order by which it has agreed with
the finding recorded by the Revenue Appellate Authority. Hence, this appeal.

11. We are of the opinion that the order passed by the learned Single Judge does not
call for any interference. The facts mentioned about speaks clear and loud for
themselves that this appeal is pursued to deny the fruit of litigation in which not only a
preliminary decree but final decree has also been passed long ago in 1971. While the
petitioner was pursuing the preliminary decree, he has not chosen to go against the
final decree perhaps hoping that if the preliminary decree fails, the final decree
founded on such preliminary decree shall automatically (sic). In that hope when the
final decree was put to execution, only then he filed an appeal and moved an
application under Section 5 of the Limitation Act along with condoning the delay.

12. We are of the opinion that the proceedings are clear and leaves no room of doubt
that this was only to avoid and to defeat the final decree passed in 1971.

13. As a result, the appeal fails and is hereby dismissed with costs which is quantified
to Rs. 5,000/-.

Appeal dismissed.