SUNIL KUMAR GARG, J. - (1.) BOTH the above -mentioned writ petitions are being decided by this common order as in both of them common questions of law and facts are involved.
(2.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioners on 18.03.1998 against the respondents with the prayer that by an appropriate writ, order or direction, the order dated 16.04.1992 (Annex. 4) passed by the Collector, Bikaner by which the prayer of the petitioners about maintainability of the appeal filed by the respondent No. 4 Jugal Kishore on the ground of limitation was rejected and furthermore, the judgment dated 16.01.1998 (Annex. 5) passed by the Board of Revenue, Ajmer by which the revision petition filed by the petitioners against the order of the learned Collector, Bikaner dated 16.04.1992 (Annex. 4) was dismissed, be quashed and set aside. The case of the petitioners as put forward by them in this writ petition is as follows: One Roop Chand, father of the respondent No. 4 Jugal Kishore, was a khatedar tenant of Khasra No. 8, measuring 125 Bighas and 11 Biswas in village Himatasar, Tehsil and District Bikaner. One Bhagwan Das, grand father of the respondent No. 3 Narain Das, claimed Khatedari rights over the lands by way of application under Section 19 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Act of 1955') before the Sub Divisional Officer (North). Bikaner. The Sub -Divisional Officer vide his order dated 07.08.1958 (Annex. 1) declared that Bhagwan Das had acquired Khatedari rights over the lands under Section 19 of the Act of 1955. It was further submitted by the petitioners that prior to the declaration of the Khatedari rights, Bhagwan Das executed a sale deed of the lands in favour of his grand -son Narain Das (respondent No. 3) on 17.10.1957. After the grant of the Khatedari rights in favour of Bhagwan Das, the mutation was recorded in the name of Bhagwan Das vide mutation No. 16 dated 27.1.1961 Later on, mutation No. 224 dated 3.2.197 was recorded in favour of Narain Das (respondent No. 3). A copy of the said mutation dated 03.02.1975 is marked as Annex. 2. It was further submitted by the petitioners that Narain Das (respondent No. 3) was recorded as Khatedari tenant in the Khatoni since 1961 and was in cultivatory possession of the same from 1961 till 1989. It was further submitted by the petitioners that the respondent No. 3 Narain Das transferred part of the said lands in favour of the petitioners vide registered sale deed dated 02.06.1978 and mutation Nos. 228 and 229 were attested in favour of the petitioners respectively on 10.12.1978 and 16.11.1978. It was further submitted by the petitioners that on 23.10.1989, the respondent No. 4 Jugal Kishore filed an appeal against mutation dated 03.02.1975 before the Collector, Bikaner against respondent No. 3 Narain Das alone without impleading the petitioners as parties, although the petitioners were shown as Khatedar tenants of the lands since 1978. The respondent No. 3 Narain Das contested the appeal without impleading the petitioners. He contested the appeal on the ground of limitation also. The preliminary objection regarding limitation raised by the respondent No. 3 Narain Das was decided by the Collector, Bikaner vide his order dated 11.07.1991, a copy of which is marked as Annex. 3. According to the petitioners, the learned Collector allowed the application under Section 5 of the Limitation Act without holding that there was any sufficient cause for preferring the appeal beyond limitation or condoning the delay of 14 years. The Collector was of the view that the question regarding the mutation being void was raised and, therefore, condoned the delay. Thereafter, the petitioners made an application for being impleaded as party in that appeal filed by the respondent No. 4 Jugal Kishore and that application was allowed by the learned Collector, Bikaner vide order dated 11.03.1992 and the petitioners were impleaded as party in that appeal. The further case of the petitioners is that when they became the party to that appeal filed by the respondent No. 4 Jugal Kishore, they contested the same on the ground of limitation, but the prayer of the petitioners about maintainability of that appeal on the ground of limitation was rejected by the learned Collector, Bikaner vide order dated 16.04.1992 holding inter -alia that the question of limitation had already been decided vide order dated 11.07.1991 (Annex. 3). Aggrieved from the order dated 16.04.1992 (Annex. 4) passed by the learned Collector, Bikaner, the petitioners preferred a revision petition before the Board of Revenue and the same was dismissed by the Board of Revenue through judgment dated 16.01.1998 (Annex. 5) holding inter -alia: (i) That non -presence of the petitioners before the Court at the time when the application under Section 5 of the Limitation Act was allowed by the Court was not found the ground on which maintainability of appeal on the ground of limitation can be challenged. (ii) That since at the time of deciding the application under Section 5 of the Limitation Act for condonation of delay, the concerned Court took into account the facts and circumstances of the case and, therefore, in such discretionary matter in revision, interference should not be made. (iii) That the fact that the petitioners were not party before the Court at the time when the application under Section 5 of the Limitation Act was allowed, would not make the difference to the order Annex. 3 dated 11.07.1991 by which the appeal was treated within limitation. (iv) That apart from this, since the appeal on merit had not been decided as yet, therefore, it would not affect the case of the petitioners. Aggrieved from the impugned order Annex. 4 dated 16.04.1992 passed by the learned Collector. Bikaner and impugned judgment Annex. 5 dated 16.01.1998 passed by the Board of Revenue, the petitioners have preferred this writ petition.
(3.) IN this writ petition, the main contention of the learned Counsel for the petitioners is that the prayer of the petitioners about maintainability of the appeal on the ground of limitation was wrongly rejected by both the Courts below and it should have been allowed and the appeal filed by the respondent No. 4 Jugal Kishore should have been treated as time barred.;