[Cites 6, Cited by 0]
Rajasthan High Court - Jodhpur
Pathani Bibi vs Board Of Revenue (2026:Rj-Jd:20523) on 29 April, 2026
[2026:RJ-JD:20523]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 24338/2025
Pathani Bibi W/o Late Shri Sharif Khan, Aged About 66 Years,
Resident Of Village Noorpura, Tehsil Sadul Shahar, District
Sriganganagar (Raj.).
----Petitioner
Versus
1. Board Of Revenue, State Of Rajasthan, Ajmer (Raj.)
Through Its Secretary.
2. Ameen Khan S/o Mohammad Sadik, Resident Of Village
Rodanwali, Tehsil And District Hanumangarh (Raj.).
3. Asmeel @ Suleman S/o Mohammad Sadik, Resident Of
Village Noorpura, Tehsil Sadul Shahar, District
Sriganganagar (Raj.).
4. Rajab Ali S/o Yasin Khan, Resident Of Village Rodanwali,
Tehsil And District Hanumangarh (Raj.).
5. Khudabaksh S/o Sher Khan, Resident Of Village
Rodanwali, Dhani 3 Rw, Tehsil And District Hanumangarh
(Raj.).
6. Tehsildar, Tehsil Sadul Shahar, District Sriganganagar
(Raj.).
7. Umar Sadik S/o Yakub, Resident Of Village Noorpura,
Tehsil Sadul Shahar, District Sriganganagar And Presently
Resident Of Village Rodanwali, Tehsil And District
Hanumangarh (Raj.).
8. Adris S/o Gulam Rasool, Resident Of Village Rodanwali,
Tehsil And District Hanumangarh (Raj.).
9. Ainsa Bibi D/o Gulam Rasool W/o Khushi Mohammad,
Resident Of Village Rodanwali, Tehsil And District
Hanumangarh (Raj.).
10. Nemat Bibi D/o Gulam Rasool W/o Yasin, Resident Of
Village Rodanwali, Tehsil And District Hanumangarh
(Raj.).
11. Nooran Bibi D/o Gulam Rasool W/o Ameen, Resident Of
Village Rodanwali, Tehsil And District Hanumangarh
(Raj.).
12. Jannat D/o Gulam Rasool W/o Bashir Khan, Resident Of
Village Rodanwali, Tehsil And District Hanumangarh
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(Raj.).
13. Khureshan Bibi D/o Gulam Rasool W/o Sharik Khan,
Resident Of Chak 8 Llw, Tehsil And District Hanumangarh
(Raj.).
14. Jaini D/o Yakub W/o Idris, Resident Of Village Kikranwali,
Tehsil And District Hanumangarh (Raj.).
15. Pathani D/o Yakub W/o Shakir Khan, Resident Of Village
Noorpura, Tehsil Sadul Shahar, District Sriganganagar
(Raj.).
16. Noora S/o Gulam Rasool, Resident Of Village Rodanwali,
Tehsil And District Hanumangarh (Raj.).
17. Jamaldeen S/o Gulam Rasool, Resident Of Village
Rodanwali, Tehsil And District Hanumangarh (Raj.).
18. Ameen Khan S/o Gulam Rasool, Resident Of Village
Rodanwali, Tehsil And District Hanumangarh (Raj.).
19. Abdul Hak S/o Gulam Rasool, Resident Of Village
Rodanwali, Tehsil And District Hanumangarh (Raj.).
20. Sattar Khan S/o Gulam Rasool, Resident Of Village
Rodanwali, Tehsil And District Hanumangarh (Raj.).
21. Sakura S/o Gulam Rasool, Resident Of Village Rodanwali,
Tehsil And District Hanumangarh (Raj.).
22. Gafura S/o Gulam Rasool, Resident Of Village Rodanwali,
Tehsil And District Hanumangarh (Raj.).
23. Rahmi D/o Yakub W/o Asku, Resident Of Village
Lakhuwali, Tehsil And District Hanumangarh (Raj.).
24. Varis Ali S/o Yasin, Resident Of Village Rodanwali, Tehsil
And District Hanumangarh (Raj.).
25. Jubeda D/o Yasin W/o Sudam, Resident Of Village
Rodanwali, Tehsil And District Hanumangarh (Raj.).
26. Suba Rani D/o Yasin W/o Mohammad Salam, Resident Of
Chak 8 Llw, Tehsil And District Hanumangarh (Raj.).
27. Kursuma D/o Yasin W/o Nazam Ali, Resident Of
Kikranwali, Tehsil And District Hanumangarh (Raj.).
28. Mafia D/o Yasin W/o Asman, Resident Of Chak 8 Llw,
Tehsil And District Hanumangarh (Raj.).
29. Ainsa Bibi W/o Yasin, Resident Of Village Rodanwali, Tehsil
And District Hanumangarh (Raj.).
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30. Sarman D/o Meeno @ Kamo Bibi, Resident Of Village
Rodanwali, Tehsil And District Hanumangarh (Raj.).
31. Ainsa Bibi D/o Meeno @ Kamo Bibi, Resident Of Village
Rodanwali, Tehsil And District Hanumangarh (Raj.).
32. Mali D/o Meeno @ Kamo Bibi, Resident Of Salemkheda
Nasani, Tehsil Tibbi, District Hanumangarh (Raj.).
33. Adris Bibi D/o Meeno @ Kamo Bibi, Resident Of Chak
Labana, Tehsil Pilibanga, District Hanumangarh (Raj.).
34. Mariya Bibi D/o Meeno @ Kamo Bibi, Resident Of Chak
Labana, Tehsil Pilibanga, District Hanumangarh (Raj.).
35. Rama Bibi D/o Jana Bibi, Resident Of Village Rodanwali,
Tehsil And District Hanumangarh (Raj.).
36. Nema Bibi D/o Jana Bibi, Resident Of Village Noorpura
Dhani, Tehsil Sadul Shahar, District Sriganganagar (Raj.).
----Respondents
For Petitioner(s) : Ms. Tania Chug for
Mr. Himmat Jagga.
For Respondent(s) : Mr. Sushil Bishnoi.
HON'BLE MR. JUSTICE SANJEET PUROHIT
Order
29/04/2026
1. Present writ petition has been filed challenging validity and
propriety of order dated 10.11.2023 (Annexure-3) passed by
learned Board of Revenue ("BoR"), whereby judgment and decree
dated 23.11.2021 passed by learned trial Court, namely Court of
Assistant Collector-cum-SDO, Sadul Shahar, District Srigangangar
as well as judgment dated 29.03.2023 passed by learned Revenue
Appellate Authority, Sriganganagar ("RAA") were quashed and set
aside; matter was remanded to learned Trial Court for
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adjudication afresh after affording proper opportunity of hearing
and opportunity to lead evidence to all concerned parties.
2. Explaining facts giving rise to present writ petition, learned
counsel for petitioner stated that petitioner - plaintiff had
instituted a suit for partition under sections 88 and 53 of the
Rajasthan Tenancy Act, 1955 ("Act of 1955"), seeking relief in
respect of a 2/3rd share in the total land measuring 7.823
hectares, comprised in Khata No. 91/91 of Chak 17 KSD, Tehsil
Sadul Shahar, District Sriganganagar ("land in question") on the
ground that said land had wrongly been recorded as custodian
land. It was, therefore, prayed that said entry be corrected and
that petitioner - plaintiff be declared as khatedar of the land in
question and his name be shown in the revenue records
accordingly. A further prayer was also made for deletion of the
names of existing khatedars, namely Jana Bini and Meeno Bibi @
Kamo Bibi, daughters of Yusuf.
2.1 It was submitted that notices were duly issued to all the
defendants; however, except defendant no.4, namely Smt.
Pathani, wife of Yukub, none of the other defendants appeared to
contest the suit, therefore, learned trial Court proceeded ex parte
against said defendant. Defendant no. 4 filed a written statement
supporting the case of petitioner - plaintiff and prayed for allowing
the suit.
2.2 As the suit remained uncontested, learned Trial Court
passed judgment and decree dated 23.11.2021, whereby
petitioner-plaintiff was declared as khatedar / tenant of the land
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in question, and directions were issued for deletion of the names
of Jana Bini and Meeno Bibi @ Kamo Bibi from the revenue
records.
2.3 Said judgment and decree dated 23.11.2021 was challenged
by the legal representatives of Jana Bini and Meeno Bibi @ Kamo
Bibi before learned RAA, Sriganganagar and learned RAA, vide
order dated 29.03.2023 dismissed the application filed under
Section 5 of the Limitation Act on the ground that no sufficient
cause was shown for condonation of delay and, consequently,
dismissed the appeal itself.
2.4 Thereafter, respondent Nos. 2 to 5 preferred a second appeal
before learned BoR, Ajmer, which was allowed vide order dated
10.11.2023. Learned BoR, Ajmer quashed and set aside judgment
and decree dated 23.11.2021 as well as order dated 29.03.2023,
and remanded the matter to learned Trial Court for fresh
adjudication.
2.5 Aggrieved by said order dated 10.11.2023, instant writ
petition is filed.
3. Learned counsel for the petitioner submitted that learned
BoR, Ajmer committed manifest error of law in allowing the appeal
and setting aside the concurrent findings recorded by the Courts
below. It was argued that the finding regarding improper service is
erroneous, inasmuch as service had been duly effected by way of
affixation in accordance with law. It was further contended that
learned RAA had rightly rejected the application for condonation of
delay on account of absence of sufficient cause, and, therefore,
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the interference by learned BoR is wholly unjustified. It was also
submitted that learned trial court had passed a detailed and
reasoned judgment on the basis of pleadings and evidence
available on record, which did not warrant any interference,
consequently, the order of remand is unjustified.
4. Per contra, learned counsel for the respondents supported
impugned order dated 10.11.2023 and submitted that learned
Trial Court failed to adhere to the prescribed procedure for service
of summons under the relevant provisions of the Code of Civil
Procedure. It was contended that judgment and decree dated
23.11.2021 had been passed ex parte without ensuring proper
service upon respondents, who had no knowledge of the
proceedings. It was, therefore, submitted that learned RAA erred
in declining to condone the delay.
4.1 Learned counsel for the respondents further submitted that
the suit itself was not maintainable, as it had been instituted
against persons who had already expired prior to the filing of the
suit, namely defendant Nos. 2, 5, and 6. Consequently, the decree
passed against dead persons is a nullity in the eyes of law.
4.2 A preliminary objection was raised that present writ petition
is liable to be dismissed on the ground of delay and laches,
inasmuch as the impugned order was passed on 10.11.2023,
whereas the present writ petition has been filed after a lapse of
more than two years, i.e., in December 2025, without furnishing
any explanation for such inordinate delay.
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5. Heard learned counsel for the parties and perused the
material available on record.
6. This Court deems it appropriate to first deal with the
preliminary objection regarding delay in filing writ petition.
6.1 Law with regard to delay and laches is no more res integra.
It is well-settled that even if no period of limitation is provided for
filing a writ petition, the same is required to be filed within a
reasonable time; excessive or inordinate delay in filing the same
deprives the petitioner of the right to seek any relief from the
Court.
6.2 The Hon'ble Supreme Court, in a catena of authoritative
pronouncements, has consistently held that a writ in the nature of
certiorari, against an order passed by a Civil Court, Revenue
Court, or any quasi-judicial authority, is required to be filed within
a reasonable period, which has ordinarily been construed to be up
to ninety days.
6.3 Reliance may appropriately be placed upon the judgment of
Hon'ble Apex Court passed in Mrinmoy Maity v. Chhanda
Koley, (2024) 15 SCC 215, wherein the Hon'ble Court opined as
follows:
"9. Having heard rival contentions raised and on perusal of
the facts obtained in the present case, we are of the
considered view that the writ petitioner ought to have
been non-suited or in other words the writ petition ought
to have been dismissed on the ground of delay and laches
itself. An applicant who approaches the court
belatedly or in other words sleeps over his rights for
a considerable period of time, wakes up from his
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deep slumber ought not to be granted the
extraordinary relief by the writ courts. This Court
time and again has held that delay defeats equity.
Delay or laches is one of the factors which should be
borne in mind by the High Court while exercising
discretionary powers under Article 226 of the
Constitution of India. In a given case, the High Court
may refuse to invoke its extraordinary powers if laxity on
the part of the applicant to assert his right has allowed the
cause of action to drift away and attempts are made
subsequently to rekindle the lapsed cause of action.
11. For filing of a writ petition, there is no doubt that
no fixed period of limitation is prescribed. However,
when the extraordinary jurisdiction of the writ court
is invoked, it has to be seen as to whether within a
reasonable time same has been invoked and even
submitting of memorials would not revive the dead
cause of action or resurrect the cause of action
which has had a natural death. In such circumstances
on the ground of delay and laches alone, the appeal ought
to be dismissed or the applicant ought to be non-suited. If
it is found that the writ petitioner is guilty of delay and
laches, the High Court ought to dismiss the petition on
that sole ground itself, inasmuch as the writ courts are not
to indulge in permitting such indolent litigant to take
advantage of his own wrong. It is true that there
cannot be any waiver of fundamental right but while
exercising discretionary jurisdiction under Article
226, the High Court will have to necessarily take
into consideration the delay and laches on the part
of the applicant in approaching a writ court."
6.4 This Hon'ble High Court, in Noor Khan v. Board of
Revenue, 2015 SCC OnLine Raj 8037, held that excessive or
inordinate delay in filing the writ petition disentitles the petitioner
to seek any relief from the court. Relevant paragraph is
reproduced herein below:
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"10. Indisputably, assailing the legality of order dated
24.8.93 passed by the Board of Revenue, the present writ
petition has been filed by the petitioner after a lapse of 6
years. It is pertinent to note that in the petition filed, the
order impugned dated 24.8.93 has been referred to as
dated '24.8.98' and the petitioner has furnished the
explanation of delay for the period February, 1999 to
31.8.1999 and therefore, it goes without saying that the
petitioner was well aware that inordinate delay in filing the
petition is required to be explained satisfactorily.
However, no explanation whatsoever is set out in
the petition for inordinate delay of six years in filing
the petition. In the considered opinion of this court,
if aggrieved by the order impugned, the petitioner
was required to approach this court with utmost
expedition and thus, the present writ petition which
badly suffers from vice of delay and laches,
deserves to be dismissed on this count alone.
However, taking into consideration the fact that writ
petition already stands admitted and is pending
consideration for all these years, in the interest of justice,
this court considers it appropriate to examine the case set
out by the petitioner on merits."
6.5 In the present case, it is evident from the record that
impugned judgment was passed in November, 2023, whereas
present writ petition has been filed in December, 2025, i.e. after
lapse of more than two years. A perusal of the writ petition further
reveals that no explanation whatsoever, even for the namesake,
has been furnished to justify the inordinate delay in approaching
this Court.
6.6 In view of the above, this Court is of the considered opinion
that the writ petition is liable to be dismissed on the ground of
delay and laches alone.
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7. This Court has also heard learned counsel for the parties on
merits.
7.1 A bare perusal of impugned order dated 10.11.2023 reveals
that learned BoR has categorically observed that service upon the
defendants was not effected in accordance with the provisions of
law. The suit was instituted in February, 2021, and service upon
defendant Nos. 1 to 3 and 5 to 20 was purportedly effected by
way of affixation, which was treated as sufficient by the learned
trial court. However, the record indicates that no prior order was
passed by learned trial court permitting substituted service by way
of affixation, as required under the provisions of Order V of the
Code of Civil Procedure.
7.2 On the other hand, notices were served only upon defendant
No. 4, who appeared and filed written statement supporting the
case of the plaintiff and praying the suit to be decreed in his
favour. Learned BoR has specifically recorded that, in the absence
of any order permitting substituted service, the service through
affixation was wrongly treated as sufficient, and the proceedings
were conducted ex parte against remaining defendants without
affording them any opportunity to contest the suit or to lead
evidence, which is not justified and the same amounts to denial of
opportunity to defend the suit.
7.3 It has further been recorded and remains undisputed that
the suit had been instituted against certain persons i.e. defendant
Nos. 2, 5, and 6, who had already expired prior to the filing of the
suit. Consequently, judgment and decree passed against such
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deceased persons is nullity in the eyes of law.
7.4 In these circumstances, the manner in which the proceedings
were conducted, where service was not effected in accordance
with the mandate of Order V CPC and the decree was passed
against dead persons, clearly vitiates the entire trial.
8. This Court is of considered opinion that no error, much less
an error apparent on the face of record, has been committed by
learned BoR in setting aside judgment and decree dated
23.11.2021 and in remanding the matter to learned Trial Court.
9. This Court also finds that learned RAA has committed a
grave error of law in refusing to allow the application filed under
Section 5 of the Limitation Act. It is an admitted factual position
that ex parte judgment and decree was passed against defendants
and the appeal was filed immediately after they came to know of
the factum of passing of judgment and decree dated 23.11.2021.
9.1 The law is well settled that a litigant should not ordinarily be
denied an opportunity to contest the matter on merits merely on
account of delay, unless it is shown that the delay was deliberate,
mala fide, or that the opposite party has suffered irreparable
prejudice. Courts are required to adopt a pragmatic and justice-
oriented approach while dealing with applications for condonation
of delay, particularly when bona fide reasons are demonstrated.
9.3 The order passed by the learned RAA is clearly in
contravention of said settled position of law and, therefore, the
same was rightly set aside by learned BoR. Learned BoR has taken
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note of all aforementioned factual as well as legal aspects and
passed a justified reasoned order.
10. This Court finds that no manifest illegality, jurisdictional
error, perversity, or any error apparent on the face of record is
committed by learned Board of revenue in passing impugned
order dated 10.11.2023 which may warrant interference of this
Court.
11. Consequently, present writ petition, being devoid of any
merit, is hereby dismissed.
12. Stay application and all pending applications, if any, also
stand disposed of.
(SANJEET PUROHIT),J
92-sumer/-
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