Decided on August 07,2006

Ab Gani Dar Appellant


- (1.) RESPONDENT No. 28, namely Badri Nath Koul, is admittedly the owner of 14 kanals and 17 marlas of land under survey nos. 36, 37, 38, 39, 40, 41, 42 and 43 in Village Gadiseer, to whom it has devolved for forefathers. Petitioners claiming to be tenants of the land right since the times of their forefathers and thereby in possession thereof till date, allege that the said respondent executed a power of attorney in respect of land in favour of respondents 26 and 27, who, equipped therewith sought and got sale permissions from Divisional Commissioner and sold the land to other respondents i.e 1 to 25 under registered sale deeds yet to be registered in certain cases. Claiming that these sale deeds were prejudicial to their rights, the petitioners instituted an appeal against Divisional Commissioners Sale permission aforesaid before the Financial Commissioner which was admittedly time barred and dismissed as such by him under his order dated 06.07.2005.
(2.) AGGRIEVED thereby the petitioners challenge the same through this writ petition on various grounds. First, that having been in continuous possession of the land as tenants thereof they would automatically become prospective owners u/s 4 of the Agrarian Reforms Act, and after completion of levy etc., would acquire title thereto u/s 8 of the aforesaid Act., which prospect stands blurred by sale of the land as aforesaid. Secondly, that as tenants of the land since immemorial times they could not be dispossessed by respondents on strength of whatever document might have been executed in their favour by respondent no. 28, and accordingly seek quashment of Financial Commissioners order aforesaid of dismissing their appeal.
(3.) IN their reply the respondents 1 to 25 separately and respondent no.28 through separate memo of reply have besides denying their claim of tenancy contended that petitioners having raised crucial question of fact, determination whereof would be essential for settlement of the matter, the writ petition would not lie, particularly because the remedy already exhausted by the petitioners has not yielded them anything. During course of submissions the learned counsel appearing for rival sides have besides reiterating the contents of their pleadings referred to the annexures also to canvass their respective points of view. I have heard learned counsel and considered the matter. In so far as the compass of writ petition essentially is concerned, it is mainly focused against Financial Commissioners order of dismissal of petitioners appeal on the ground of limitation even though, in substance he has touched the merit of the matter also. Coming to the question of limitation, it would appear that any order passed under "The J&K Migrant Immovable Property (Preservation, Protection and Restrain on Distress Sales) Act, 1987", (hereinafter referred as the Migrants Act) is appealable u/s 7 thereof with 15 days limitation prescribed for filing of appeals from the date of making of the order, while as in the instant case the petitioners were on their own showing late by two months in institution of appeal. In order to get out of that they invoke their plea relating to condonation of delay which incidentally in circumstances is perhaps not available to them. It may be noticed that aforesaid Act while prescribing limitation for filing appeals does not contain any provision enabling the aggrieved party to seek extension of time on any ground whatsoever. This position when considered along with provisions of section 29 of the Limitation Act, creates a difficult situation for the petitioners because thereunder where a special act specifically provides a period of limitation for institution of proceedings, different from the one prescribed under Limitation Act, then the provisions of Sections 3,4,9 to 18 and 22 as contained in limitation act would only apply. As is evident the condonation of delay is provided u/s 5 thereof which interms of Section 29 may not apply to the proceedings under the aforesaid Migrants Act for the reason that Migrants Act prescribes a different limitation for institution of appeals, than the one under Limitation Act. Plainly, therefore, the provision of having the delay condoned was perhaps not available to the petitioners before the Financial Commissioner, who even while being correct on limitation has undoubtedly acted wrongly by rendering opinion on merits of the case, including nature of the land etc while dismissing the petitioners appeal as time barred. At this stage, it would be appropriate to quote from a Judgment of this Court in case captioned "Pushpa Devi v. Nanak Singh" reported as 1982 KLJ 278, wherein applicability of the provisions of Limitation Act regarding extension of time/condonation of delay in filing appeals under the said Act has been lucidly discussed as under: - "....(4) On the plain language of Sub -section (2) once it is shown that the special or local law under which the suit, application, or appeal is brought, provides for it a period of limitation different from the one provided therefor by the first Schedule, all provisions of the Limitation Act, except those contained in section 3,4,9 to 18 and 22 shall have no application to such suit, application or appeal proprio vigore. Even the provisions contained in Section 4 and 9 to 18 and 22 shall have no application in;so far and to the extent to which they are expressly excluded by the special or local law under which the suit, application or appeal is brought. With due respect to the Ld. Acting Chief Justice, there is no warrant for the proposition that Section 5 is independent of Section 29 and has nothing to do with reckoning of the period of limitation. Period of limitation is prescribed by the first schedule. How that period is to be reckoned in different cases under different circumstances has been provided by various section of Limitation Act, including section 5, which too has the effect of extending the same in certain given cases on proof that this section has no bearing on the computation of period of limitation prescribed under the first Schedule. Unless, therefore, section 5 is specifically made applicable to any suit, appeal or application by the special or local law prescribing limitation for the same, it cannot apply to it by its own force The law thus seems to be well settled that the expression "under the Code of Civil Procedure" occurring in Art 156 merely connotes that an appeal shall lie to the to the High Court the procedure to be followed wherein is governed by the Code of Civil Procedure. It does not connote that the right to file the appeal itself must be conferred by the Code of Civil Procedure. The procedure to be followed in appeals under the Act, there can be no manner of doubt, is one prescribed by the Code of Civil Procedure. Section 23rd the Act specifically makes the Code applicable to all proceedings under the Act. The conclusion that Art. 156 would have applied to appeals under section 34 of the Act had this section not prescribed the period of ninety days for filing appeals under it is, therefore, inescapable. The first contention raised by Mr. Rachpal Singh is, therefore, overruled." Thus in law the petitioners appeal before Financial Commissioner having been admittedly time barred and the provisions relating to extension of time and condonation of delay not having been available to them, their prayer as such appears to have been rightly turned down by Financial Commissioner which automatically resulted in rejection of their appeal. As regards the issues of fact pertaining to nature of land in question, factum and nature of possession and texture of the conflicting claims of the parties etc. involved in the matter, learned Financial Commissioners findings/observations appear to be uncalled for as the matter before him was not considered on merit.;

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