IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6792 of 2002 GANGO YADAV S/O- LATE ANUP YADAV, R/O- VILLAGE JAGMOHRA, P.S.- HASANPUR, DISTRICT SAMASTIPUR Versus 1. THE STATE OF BIHAR THROUGH THE COLLECTOR, SAMASTIPUR 2. THE SETTLEMENT OFFICER, DARBHANGA 3. THE ASSISTANT SETTLEMENT OFFICER, ROSERA, DISTRICT – SAMASTIPUR 4. BINDESHWARI YADAV 5. UMESH YADAV BOTH SONS OF LATE GOBIND YADAV AND RESIDENT OF VILLAGE- JAGMOHRA, P.S. – HASANPUR, DISTRICT - SAMASTIPUR ----------- 3. 13.02.2009 Heard learned counsel for the petitioner, State as well as the respondents. No one appears on behalf of respondents No. 4 and 5 despite service of notice. The petitioner is aggrieved by the order dated 21.08.2001 and 29.11.2001 as contained in Annexure-3. By order dated 21.08.2001, the suit filed by the respondent nos. – 4 and 5 under Section 106 of the Bihar Tenancy Act vide Suit No. 2 of 2000 challenging the entries in the records of rights published on 28th of May 1985 with respect to land appertaining to Khata No. 17 Survey Plot Nos. 417 and 418 in Jagmahra P.S. No. 369 Circle Hasanpur district - Samastipur as contained in Annexure-1 was filed on 11th of January 2000 i.e. after 15 years. However, the suit was admitted for hearing - 2 - without any notice to the petitioner as per the aforesaid order dated 21.08.2001. The petitioner on receiving the summons an admission of the suit appeared and filed objection vide Annexure-2 with a prayer to dismiss the suit as the same was filed much beyond the prescribed limit of 90 days after publication of the records of rights. The objection of the petitioner was dismissed by order dated 29.11.2001 holding to the effect that delay in filing the suit was condoned by the predecessor in office and with further observation that in case petitioner has any grievance with regard to the order dated 21.08.2001 whereby the suit was admitted after the prescribed period of limitation, petitioner will be free to take steps in the matter in any Competent Court of law. It is submitted on behalf of the petitioner that respondent no. 3 ought to have considered the objection of the petitioner as the suit was admitted after long expiry of the limitation period and as he was not noticed nor heard at that stage therefore, the objection of the petitioner ought not to have been rejected on the ground that the delay was condoned by the predecessor in office. In this connection, learned counsel for the petitioner further submits that the delay in filing the suit cannot be condoned by filing a separate application even under Section 5 of the Limitation Act as the said provision - 3 - applies for condoning the delay in filing appeal or application are not sent. The complaint of the suit as contained in Annexure-1 does not disclose any reason for filing the suit after 15 years. In this connection, he relied upon a decision of this court in the case of Kunti Kumari @ Manju Singh Vs The State of Bihar & Ors. reported in 1998 (Volume-3) PLJR Page 490 wherein it was held that the Provision of section -5 of the limitation Act is not applicable in the matter of preferring asuit but is only applicable, if any appeal or application other than an application under any of the provision of order XXI of the Code of Civil Procedure is preferred. Learned counsel for the State submits that it would be appropriate if the matter is heard afresh by the respondent no.-3 on the question of limitation. Considering the submission of the parties, it appears that the records of rights in respect of the land in question was published on 28th of May, 1985 whereas the suit was filed on 11th of January 2000 as per Annexure- 1. However, in absence of any pleading in respect of the said suit justifying the filing of the suit after such a long delay and that also without hearing the Opposite Parties of the said suit, I, am of the view that the objection filed by the petitioner (Annexure-2) was not considered in accordance with law and the objection of the petitioner - 4 - on the question of limitation was disposed of by observing that since the suit was admitted after condoning the delay by the predecessor in office, the question of limitation raised by the petitioner cannot be entertained. In my opinion, the orders passed by the respondent no.- 3 dated 21.08.2001, as well as, the order dated 29.11.2001, as contained in Annexure-3, cannot be sustained in law. The aforesaid orders are quashed and the matter is remitted back to the respondent no.- 3 the Assistant Settlement Officer, Rosera District– Samastipur for passing the order afresh in accordance with law after hearing the parties on the objection petition filed by the petitioner as contained in Annexure-2. The writ application is, accordingly, allowed with the above observations/directions. Jagdish/- (Shailesh Kumar Sinha,J)