DHARUBHAI MAKNABHAI MAKWANA Vs. KESIBEN CHUNIYABHAI MAKWANA

JUDGEMENT

(1.) The present proceedings have arisen out of order passed by the learned Single Judge dtd. 9/10/2019 passed in Special Civil Application No. 15104 of 2014. It appears from the record that for the purpose of seeking condonation of delay of five (5) days, Civil Application No. 1872 of 2021 has been submitted to condone the delay of five (5) days, which has occurred in preferring Letters Patent Appeal and since the said application having not been stoutly opposed, we deem it proper to allow this application and with the consent and request of the learned advocates appearing for the parties, the main Letters Patent Appeal is taken up for hearing.

(2.) The background of facts in brief are that land bearing Revenue Survey No. 106/2 admeasuring 2 Acres 02 Gunthas of Mouje Dungri, Taluka Jhalod, District Dahod (hereinafter referred to as "the land in question" ) was originally in the name of Chuniyabhai Zala. Respondent nos. 1 to 3 of the original petition happened to be the daughters of Chuniyabhai, whereas respondent no. 4 is the widow of Chuniyabhai Zala. On 10/9/1980 by way of "Kachha Dastavage", the said land was sold to respondent no. 5 and for seeking regularization of the said sale, respondent no. 5 submitted an application on 16/11/1990 to the Deputy Collector. Since the Deputy Collector found that the sale was between two Adivasis, the said sale came to be regularized and against the said order, petitioner no. 1 preferred an application raising grievance before the Collector against the grant of regularization of sale, which came to be rejected after due adjudication, vide judgment and order dtd. 24/9/1992. Feeling aggrieved by the same, the original petitioners preferred Revision Application before the Special Secretary Revenue Department (SSRD) and SSRD after hearing the parties, was pleased to pass an order on 27/12/1996, by virtue of which the revision application came to be rejected and against the said impugned orders passed by the authorities below, the petitioners have preferred Special Civil Application No. 15104 of 2019.

(3.) Learned advocate Mr. Shethna, appearing for the petitioners has submitted that the learned Single Judge while passing the impugned order has adopted too technical approach and instead of examining the case on merits, in substance, the petition was not entertained on the ground of delay and as such the exercise of discretion by the learned Single Judge requires to be interfered with. Learned advocate Mr. Shethna has further submitted that additional consideration for rejecting the petition was non joinder of the party which is a rectifiable error and petitioner ought to have been extended an opportunity, to rectify the error and as such, qua that since no opportunity is extended by the learned Single Judge to rectify the mistake, the order impugned deserves to be interfered with.