BHARGAVA, J. - (1.) THIS is an application under Art. 226 of the Constitution of India for a writ of certiorari against the judgment and order of the Board of Revenue dated 28th November, 1960.
(2.) IN village Rampura, Tehsil Itawa, there is field No. 302 measuring 105 bighas 13 biswas which was in Muafi of Mst. Gaindi. It is alleged by the petitioner that this field was let out to him by Mst. Gaindi in the year 1945 on a rental of Rs. 181/6 and since then he has been in its cultivatory possession. IN 1957, the Settlement Department also issued a Parcha (Ex. P-l) in his favour. IN Smt. year 2002 he was entered as a sub-tenant in the Khata. Mst. Gaindi died in the year 1945-46. On her death an enquiry was held by the Revenue Department for mutation purposes to find out her real successors. Ultimately the Commissioner of Kotah decided by his order dated 3rd December, 1956 that Mst. Gandi had died heirless and so the grant was liable to be resumed to the State. During the pendency of the aforesaid proceedings, the revenue authorities wanted to dispossess the petitioner. But upon his representation the Collector, Kotah, passed an order on 12th June, 1954 that the petitioner, who had agreed to pay double the rent should not be dispossessed till the conclusion of the said proceedings. After the land was ordered to be resumed, the petitioner made an application under sec. 19 of the Rajasthan Tenancy Act (hereinafter called the Act) on 26th August, 1957 to the Sub-Divisional Officer, Kotah, to grant Khatedari rights of the disputed land to him. The Sub-Divisional Officer Kotah by his order dated 12th May, 1958 granted Khatedari rights in respect of field No. 302 to the petitioner vide Ex. P-4 and in consequence of it the petitioner's , name was entered as Khatedar by means of the proceedings in the transfer register of village Rampura vide Ex. P-5. Then one Birdhilal, who had ill-will against the petitioner, along with respondents Nos. 5 to 18 preferred an appeal against the order of the Sub-Divisional Officer dated 12th May, 1958, on 28th October, 1958. This appeal was allowed by the Commissioner, Kotah, even though the petitioner had contended before him that Birdhilal and the other respondents had no locus standi to file the appeal and the appeal was barred by limitation having been filed after the expiry of the prescribed period of limitation. The petitioner then preferred a second appeal before the Board of Revenue, but the same was dismissed on 28th Nov. , 1960. The petitioner challenges the order of the Board of Revenue mainly on these grounds : (1) that Birdhilal and the other persons who had joined him in filing the appeal before the Revenue Commissioner had no locus standi to file that appeal because they were not parties to the proceedings before the Sub-Divisional Officer; (2) that the appeal submitted before the Revenue Commissioner was apparently barred by limitation and the Board of Revenue committed an error of law in holding that sec. 3 of the Indian Limitation Act was not applicable to such appeal; and (3) that the Board of Revenue as well as the Revenue Commissioner committed an error of law, which is apparent on the face of record, in holding that the proviso to sec. 15 of the Act applied to the case of the petitioner. A reply to the writ petition has been submitted on behalf of respondents Nos. 1,2 and 3 i. e. . Board of Revenue, the Commissioner of Kotah and the Sub-Divisional Officer Kotah. It has been admitted in their reply that the disputed field was held in Muafi by Mst. Gaindi who died sometime in Smt. 2000. It is denied that the land was let out to the petitioner by Mst. Gaindi. On the other hand, it has been asserted that one Hiralal was cultivating the field on behalf of Mst. Gaindi and even after her death he had paid the land revenue to the Government vide Ex. A l and A2. It has been further stated that the petitioner, with the collusion of the Patwari, got his name entered in the revenue records as a cultivator for one year i. e. , Smt. year 2002 and, thereafter, this entry was tampered with and the period of one year was altered to five years. The Tehsildar reported this matter to the Collector on 6. 5. 1954 vide his report Ex. A-4 at which the Collector passed an order for auctioning the land on 18. 8. 1954. Thereafter, on the representation of the petitioner, the Collector, by his order dated 12th June, 1954, allowed the petitioner to remain temporarily in possession of the land till the conclusion of the resumption proceedings, or the appointment of Mst. Gaindi's successor. It is stated that the petitioner was holding the land temporarily and as such no Khatedari rights could be conferred upon him as the land was situated within the Chambal Project Area to which the proviso to sec. 15 fully applied. It is stated that Birdhilal was competent to file the appeal before the Revenue Commissioner because he had himself applied for allotment of this land to him and as such had sufficient interest in the matter to go in appeal against the order of the Sub-Divisional Officer. As for the point of limitation, it is stated that this objection was never raised by the petitioner before the Revenue Commissioner. The writ petition was heard by a Division Bench of this Court, which allowed it by its judgment dated 24th August, 1964. The judgment of the Division Bench is reported in I. L. R. 14 Raj. , page 990. The High Court set aside the orders of the Revenue Board and the Commissioner solely on the ground that the Revenue Commissioner had no authority to hear the appeal on the merits and that the Revenue Board was in error in holding that the plea of limitation could not be given effect to as an objection as to limitation had not been raised before the Commissioner. We may point out that the Board of Revenue in its judgment had observed that sec. 3 of the Indian Limitation Act had application only to those appeals which were included within the first Schedule to the Limitation Act and further that section (sec. 3) did not deprive a court of its jurisdiction to decide an appeal. The High Court held that sec. 29 of the Indian Limitation Act was applicable to appeals filed under the Act and that by virtue of the deeming provision contained therein the period of limitation prescribed in the Act became as if it was prescribed in the First Schedule to the Limitation Act itself and as such sec. 3 of the Limitation Act became applicable to the appeal before the Revenue Commissioner also. It was therefore, held that even if objection as regards period of limitation was not taken before the Commissioner, the appeal filed before him, if filed after the period of limitation, should have been dismissed in view of the provisions of sec. 3 of the Indian Limitation Act. It seems that the attention of the learned Judges of this Court was not invited to sub-sec. 3 of sec. 214 of the Act which makes the provisions of the Indian Limitation Act, 1908, including sec. 5, applicable to suits, appeals, applications and proceedings under or in pursuance of the Act, subject, however, to the provisions contained in sub-sec. (1) and (2) of sec. 214. That is why the learned Judges, in the course of the judgment observed. "it deserves to be noted at this place that this section does not contain any provision analogous to sec. 5 of the Indian Limitation Act whereby the period prescribed would have been extended provided sufficient cause therefor was shown by the appellant. " The respondents submitted a review petition before the High Court on the ground that there was an error in the judgment inasmuch as sec. 5 of the Indian Limitation Act was held inapplicable to appeals before the revenue courts. The review application was heard by the same Hon'ble Judges who had decided the writ petition on 24th August, 1964 and they allowed it on 12th July, 1965 as the learned counsel for the petitioner also conceded that the review application deserved to be granted. Consequently, the writ application was ordered to be set down for a fresh hearing and this is how it has come before us for disposal. In regard to the first objection whether Birdhilal had any locus standi to file the appeal before the Revenue Commissioner, the view taken by the Revenue Commissioner and the Board of Revenue is that Birdhilal was adversely affected by the order of the Sub Divisional Officer because he had himself applied for allotment of the land to him and as such the appeal filed by him was competant. In this connection reliance was placed by the Board of Revenue on a decision of the Madras High Court (l ). We do not see any error of law in the view taken by the Board of Revenue and the decision on this question appears to us to be correct. As regards the second question whether the appeal was filed by Birdhilal after the expiry of the period of limitation which, according to sub-sec. 2 of sec. 228 of the Act, was 60 days we may point out that though the appeal had been filed on 28th October, 1958 against the order of the Sub-Divisional Officer dated 12th May, 1958, and was thus obviously bared by limitation, the appellants, in the memorandum of appeal, had stated that they had been given information of the order by a Kaifiyat of the Collector on 30th September, 1958 and upon this information they applied for copy of the order and presented the appeal which should be taken as having been filed within time. It was on this ground that the delay in filing the appeal was sought to be condoned. An affidavit was also submitted to the same effect. The office of the Revenue Commissioner submitted a note that the appeal was barred by limitation, but the appellants have submitted an affidavit along with the appeal to the effect that they came to know of the order on 30th September, 1958. Although sec. 5 of the Indian Limitation Act was not specifically referred to in the memo of appeal, it seems to us that the intention of the appellants was to invoke the provisions of that section because there was no other provision for condonation of the delay in filing the appeal. The Revenue Commissioner after, perusing the office note, ordered the appeal to be registered, and issued notices to the respondents for the hearing of the appeal. The appeal was finally heard and it is clear that the respondents took no objection regarding the appeal being barred by limitation. We have already stated that the appellants had specifically taken a ground for extending the period of limitation because they had been informed of the order on 30th Sept. , 1958 and a copy of these grounds must have been served upon the respondents and yet they did not raise the plea of limitation. In such circumstances, it would be quite reasonable to hold that the Revenue Commissioner extended the period of limitation even though he did not say so specifically in his order dated 30th October 1958 and the final order. In this connection we may refer to a decision of the Privy Council in (Nawab Major) Mohammad Akbar Khan vs. Court of Wards and others (2) where in almost similar circumstances, their Lordships observed that - "although the application was made more than 90 days after the date of the order of which review was sought, it must be assumed that the Revenue Commissioner before entertaining it was satisfied that there was sufficient cause for the delay. " This shows that where a ground has been urged on behalf of the appellant for extending the period of limitation prescribed for preferring an appeal and the court entertains the appeal without making a specific order, it will be assumed that the court was satisfied that there was sufficient cause for the delay. We shall therefore assume that the Revenue Commissioner, after applying his mind to the question of limitation, entertained the appeal preferred by Birdhilal and when no objection in that respect was taken on behalf of the respondents, he decided it on merits. It is unnecessary to point out again that sec. 5 of the Indian Limitation Act was appli-\ cable to the appeal preferred before the Revenue Commissioner by virtue of sub- sec. 3 of sec. 214 of the Act. In this view of the matter, we do not agree with the learned counsel for the petitioner that the appeal preferred by Birdhilal was barred by limitation and the decision of the Board of Revenue is wrong on this ground. We accordingly reject this objection also. Now coming to the third objection, it may be pointed out that there is no dispute that the disputed field was situated in the Chambal Project Area. The proviso to sec. 15 of the Act runs thus : "provided that no Khatedari rights shall accrue under this section to any tenant to whom land is or has been let out temporarily in Gang Canal Bhakra, Chambal or Jawai Project area, notified in this behalf by the State Government. " It would appear from the language of the above proviso, which was the law in force at the time the order was passed by the Sub-Divisional Officer, that no Khatedari rights could accrue in the Chambal Project Area to any tenant to whom land was let out temporarily. So the point for determination before the Revenue authorities was whether the land had been let out to the petitioner temporarily. Learned counsel says that the Revenue Commissioner and the Board of Revenue came to the above conclusion only on the basis of the order of the Collector dated 12th June, 1954. It is pointed out that the said order was passed only to restrain the revenue authorities from dispossessing the petitioner until the proceedings for resumption of the Muafi were terminated, and by no means it could change the nature of the petitioner's tenancy already held by him. The order itself shows that the petitioner was in possession on the date the order was passed. Therefore, merely on the basis of this order the Revenue Commissioner was not entitled to hold that the case was covered by the proviso to sec. 15 of the Act. In this connection learned counsel has invited our attention to the Parcha Ex. P 1 issued by the Settlement Department and Khata entry Ex. P2 wherein the petitioner has been described as a sub-tenant of the land in dispute. It is pointed out that when the Act came into force, the petitioner was in possession of the land as a sub-tenant and as such was entitled to apply for Khatedari rights as provided in sec. 19 of the Act. We, however, do not propose to enter into the merits of this argument because it involves certain disputed questions of fact. We are however of the view that the approach of the Revenue Commissioner in deciding this question was erroneous. As already observed, he came to the conclusion that the proviso to sec. 15 was applicable to the petitioner's case merely on the basis of the order of the Collector dated 12. 6. 1954, which, as we have already said, was only meant to restrain the revenue authorities from dispossessing the petitioner till the termination of the proceedings. The Board of Revenue summarily rejected the contention of the petitioner without assigning any reason for it, and it seems to us that the same ground which was mentioned by the Revenue Commissioner in his order also weighed with the learned Members of the Board of Revenue. We, therefore, think the petitioner's appeal could not have been rejected unless the Board of Revenue came to the conclusion that the land was temporarily let out to him, and as such the case fell within the ambit of the proviso to sec. 15 of the Act. So undoubtedly there is a mistake apparent on the face of the record and we would, therefore, set aside the judgment of the Board of Revenue and direct that the appeal of the petitioner be reheard and the question whether the land was temporarily let out to him should be decided after considering all the relevant material on record. We, therefore, allow the writ petition, set aside the order of the Board of Revenue dated 28th November, 1960 and send the case back for re-hearing the appeal as aforesaid. In the circumstances of the case, we make no order as to costs. .;