J. B. MEHTA, J. ( 1 ) THESE two Letters Patent Appeals raise certain common questions of law and therefore they are disposed of by this common order. The two important questions of law which arise in there two appeals are:- (1) As regards the forum for appeal in the inquiry under sec. 37 (2) of the Bombay Land Revenue Code 1879 hereinafter referred to as the Code and the remedies which have to be exhausted before filing a suit in this connection as well as the nature of the suit which can be filed and (2) As regards the applicability of presumption under sec. 110 of the Evidence Act in such cases where a claim is sought to be decided under sec. 37 (2) of the Code. In Letters Patent Appeal No. 21 of 1966 the question is regarding the suit land marked A B C D E which is said to belong to the plaintiffs Muslim Masjid as wakf property. The two managers of the said wakf have filed the present suit. The plaintiffs claim that formerly there were houses on the suit land and a portion thereof was used as a Vada. In 1878 A. D. by an arrangement as per Ex. 40 the leading Muslims of Undhela kept Fakir Kalusha and others for looking after the wakf property and the Fakir was allowed to occupy the houses and the land. It is further the case of the plaintiffs that Fakir Kalushas sons Jenasha and Muradsha mortgaged some of the land to Haribhai Dalji and Zaverbhai Dalji for Rs. 30/by Ex. 41 on July 7 1887 is the corresponding date for Ashad Sub 5 of Samvat Year 1939. Thereafter by the document Ex. 79 the said mortgage was redeemed on April 11 1907 which is the corresponding date of Samvat Year 1964. During the continuance of the mortgage the land remained in the possession of the mortgagee - The suit houses occupied by Fakir had fallen down in the course of time - It was the case of the plaintiffs that this land was given to various potters for preparing bricks under the various rent notes which have been produced at the rent specified therein by the managers of the property. In 1944 an inquiry had been instituted by the Mamlatdar where a different portion A F D adjoining this land was held to be Government land which was found to have been encroached. It was the plaintiffs case that at that time the present land A B C D E was held to be Wakf property. Thereafter in 1950 on some application the Mamlatdar instituted inquiry on May 16 1961 and decided that the suit land A B C D E was Government land and directed the removal of the structures therefrom. An appeal had been filed to the Prant Officer which was dismissed on March 31 1952 The appeal to the Collector also failed and even the Bombay Revenue Tribunal dismissed the final appeal by the order dated April 12 1955 Thereafter the plaintiffs filed the present suit for a declaration that the suit property belonged to Wakf Masjid at Undhela and that the aforesaid order of the Mamlatdar which was confirmed by these authorities declaring the suit land to be Government land was illegal null and void. The plaintiffs also sought for a permanent injunction restraining the State Government from interfering with the plaintiffs possession of the suit land. The trial Court had decreed the plaintiffs suit by declaring that the suit land was of the ownership and possession of the Masjid Wakf at Undhela of which the plaintiffs were the managers and that the orders of the Mamlatdar District Deputy Collector and Collector and the Bombay Revenue Tribunal were illegal ultra vires and void and consequently a permanent injunction was issued restraining the defendant State from interfering with the plaintiffs? possession of the suit land. The lower appellate Court has however dismissed the plaintiffs suit. The learned Single Judge Raju J. by his order dated February 22 1966 dismissed the Second Appeal. The learned Single Judge proceeded on the ground that the 1944 inquiry was without jurisdiction as on that day the Mamlatdar had no jurisdiction to hold such an inquiry in the absence of any delegation of the powers of the Collector which had been done only in 1948 and therefore that order did not preclude the present inquiry. The learned Single Judge also confirmed the order on merits as the lower appellate Court has given a finding of fact as regards the plaintiff having failed to establish adverse possession. The learned Single Judge also confirmed the order on merits as the lower appellate Court has given a finding of fact as regards the plaintiff having failed to establish adverse possession. The documentary evidence of the old documents Exs. 40 41 and 79 was discarded as those documents had not been produced at the earlier stage till the proceedings had gone before the Revenue Tribunal. Because of this suspicious circumstance the learned Single Judge held that the presumption under sec. 90 of the Indian Evidence Act could not be drawn in plaintiffs favour and the lower appellate; Court rightly exercised the discretion to exclude these documents. The learned Single Judge also held that the oral evidence was rightly discarded as it was given under communal tension. The plaintiffs suit having thus been dismissed the plaintiffs have filed the present appeal. ( 2 ) AS regards the Letters Patent Appeal No. 6 of 1967 the inquiry before the Mamlatdar was as regards three plots A B C. Regarding plot B which was purchased by the plaintiffs as per Ex. 63 the question was conceded even by the State and therefore the inquiry had been only as regards plots A and C. The Mamlatdar held plot C as belonging to the Government while plot A was found to belong to the plaintiffs. Without any appeal by the States in the appeal of the plaintiffs the Prant Officer even set aside the finding as regards the plot A which was also held to be Government property. Therefore the plaintiffs filed a suit as regards both these plots. The trial Court upheld the plaintiffs claim as regards plot A and negatived the claim as regards plot C. The lower appellate Court also held that the plaintiffs had failed to establish their claim as regards plot C. The claim as regards plot A was disallowed by the lower appellate Court on the ground that the plaintiffs had not exhausted all the remedies as required under sec. 11 of the Bombay Revenue Jurisdiction Act 1876 and therefore the plaintiffs suit was dismissed. 11 of the Bombay Revenue Jurisdiction Act 1876 and therefore the plaintiffs suit was dismissed. The learned Single Judge Raju J. however held that the plaintiffs have failed to exhaust their remedies and they having failed to so there was a bar to the plaintiffs suit in respect of Plot C. As regards plot A however the learned Single Judge held that the Prant Officer had no jurisdiction to modify the order of the Mamlatdar when there was no appeal against this order of the Mamlatdar by the State. Therefore the plaintiffs claim was decreed by the learned Single Judge in respect of the property plot A while the suit was dismissed as regards plot C. The plaintiffs have therefore filed the present appeal as regards the said plot C only. ( 3 ) BEFORE considering these appeals on merits we would at the outset dispose of the aforesaid two important legal questions which are involved in these appeals. Sec. 37 (2) of the Code provides that all public roads etc. and all lands wherever situated which are not the property of the individuals or of aggregate of persons legally capable of holding property and except in so far as any rights of such persons may be established in or over the same and except as may be otherwise provided by any law for the time being in force are hereby declared to be with all rights in or over the same or appertaining thereto the property of the Government and it shall be lawful for the Collector subject to the orders of the State Government to dispose of them in such manner as he may deem fit as or as may be authorised by general rules sanctioned by the Government concerned subject always to the rights of way and all other rights of the public or of individuals legally subsisting. Sec. 37 (2) (3) and (4) then provide as under :- (2) Where any property or any right in or over any property is claimed by or on behalf of the Government or by any person as against the Government it shall be lawful for the Collector or a survey officer after formal inquiry of which due notice has been given to pass an order deciding the claim. (3) Any suit instituted in any Civil Court after the expiration of one year from the date of any order passed under sub-sec. (1) or sub-sec. (2) or if one or more appeals have been made against such order within the period of limitation then from the date of any order passed by the final appellate authority as determined according to sec. 204 shall be dismissed although limitation has not been set up as a defence if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order provided that in the case of an order under sub-sec. (2 the plaintiff has had due notice of such order. (4) Any person shall be deemed to have had due notice of an inquiry or order under this section the notice thereof has been given in accordance with rules made in this behalf by the State Government. Sec. 204 provides as under:- subject to the provision of the Bombay Revenue Tribunal Act 1939 an appeal shall lie to the state Government from any decision or order passed by a Survey Commissioners except in the case of any decision or order passed by such officer on appeal from a decision or order itself recorded in appeal by any officer subordinate to him. Sec. 211 deals with the revisional jurisdiction of the State with which We are not concerned. Sec. 9 of the Bombay Revenue Tribunal Act 1957 which has repealed the earlier Bombay Revenue Tribunal Act 1939 provides that the Revenue Tribunal shall have jurisdiction to entertain and decide appeals from and revise decisions and orders of officers not below the rank of Collector Deputy Commissioner in respect of cases arising under the provisions of the enactments specified in First Schedule. When we turn to First Schedule Entry S. No. 1 mentions sec. 37 (2) of the Bombay Land Revenue Code 1879 as one of the provisions of the Code the orders under which would be subject to the appellate or revisional jurisdiction of the Revenue Tribunal. When we turn to First Schedule Entry S. No. 1 mentions sec. 37 (2) of the Bombay Land Revenue Code 1879 as one of the provisions of the Code the orders under which would be subject to the appellate or revisional jurisdiction of the Revenue Tribunal. Sec. 11 of the Bombay Revenue Jurisdiction Act 1876 provides as under:- no Civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue officer unless the plaintiff first proves that previously to bringing his suit he has presented all such appeals allowed by the law for the time being in force as within the period of limitation allowed for bringing such suit it was possible to present. The aforesaid scheme of the relevant provisions with which we have to deal shows that sec. 37 (1) of the Code declares the Governments ownership in all pubic roads etc. and even in respect of all lands wherever situated which are not the property of individuals and except in so far as the rights of such persons are established in or over the same. Under sec. 37 (2) the Collector is authorised by the Legislature to hold formal inquiry for deciding the claim which is made by or on behalf of the Government or by any person as against the Government claiming any property or any right over such property. Sec. 37 (3) enacts bar of limitation for filing a suit; a civil Court for setting aside such order of the Collector or claiming any inconsistent relief with such order of which the plaintiff had due notice as provided under sec. 37 (4 ). The limitation provided is one year from the date of the order passed under sec. 37 (2) or if one or more appeals had been made against such Collectors order within the period of limitation then from the date of any order passed by the final appellate authority which has to be determined in accordance with sec. 204 Sec. 204 which provided for the appeal has also undergone changes. The present sec. 204 which we have earlier quoted shows that subject to the provisions of the Bombay Revenue Tribunal Act 1957 which must now stand incorporated in the sec. 204 Sec. 204 which provided for the appeal has also undergone changes. The present sec. 204 which we have earlier quoted shows that subject to the provisions of the Bombay Revenue Tribunal Act 1957 which must now stand incorporated in the sec. 204 in place of the earlier repealed Bombay Revenue Tribunal Act 1939 the appeal lies to the State from the decisions of the Survey Commissioner Therefore the order of the Collector cannot be appealed before the State Government. The appeal is provided only under sec. 9 (1) of the Bombay Revenue Tribunal Act 1957 read with First Schedule under which an appeal lies from the Collectors order to the Revenue Tribunal under sec. 37 (2) of the Code read with sec. 9 (1) of the Revenue Tribunal Act 1957 The Revenue Tribunal has however no such appellate jurisdiction to entertain any appeal or revision if the order is passed by the officer below the rank of the Collector in such cases. ( 4 ) THE material question which arises in the present cases is as to the true appellate forum in cases where the inquiry is held not by the Collector but by his delegate a Mamlatdar. Sec 12 of the Code provides that the Mamlatdar shall have such duties and powers as maybe expressly imposed or conferred by the Act or by any law for the time being in force or as may be imposed upon or delegated to him by the Collector under the general or special orders of the State Government. So far as the present inquiry is concerned which immediately preceded the suit in both the cases the inquiry under sec. 37 (2) of the Code was held originally by the Mamlatdar. Even though the relevant notification of 1948 which is referred to by Mr. Gupte in his commentary was not produced before us because Mr. Nanavati said that he could not trace the same the fact remains if we were to invoke the presumption of legality of the proceedings that the Mamlatdar could hold this inquiry under sec. 37 (2) only as a delegate of the Collector under sec. 12 of the Code. Gupte in his commentary was not produced before us because Mr. Nanavati said that he could not trace the same the fact remains if we were to invoke the presumption of legality of the proceedings that the Mamlatdar could hold this inquiry under sec. 37 (2) only as a delegate of the Collector under sec. 12 of the Code. When the Mamlatdar passed the order as a delegate of the Collector it is settled legal position that he exercised the same powers as the Collector himself and his order would be not that of any subordinate officer but that of the Collector himself because any other view would mean that the statutory inquiry which was to be held under sec. 37 (2) by the Collector would be held by a subordinate officer like Mamlatdar in plain violation of the terms of the statute. In Roop Chand v. State of Punjab A. I. R. 1963 S. C. 1503 page 1506 their Lordships followed the observations of Wills J. in Hooth v. Clarke (1890) 25 O. B. D. 319 that the word delegate means little more than an agent. An agent of-course exercise no powers of his own but only the powers of his principal. Therefore Their Lordships held that the powers of the Government were delegated under the relevant provision to an officer or the order of the officer must be treated as an order of the Government itself Because if it were not so and it were to be held that the order had been made by the officer himself and was not an order of the Government then that would be order made by the person on whom the Act did not confer any power to make it which would lead to an impossible situation. In view of the aforesaid settled legal position in such inquiry under sec. 37 (2) even though the inquiry is held by the Mamlatdar to whom the powers of the Collector in this connection are delegated under sec. 12 the order would still remain the order of the Collector. Therefore the appeal against such order under sec. 204 could never lie either to the Prant Officer or to the Collector himself. The Collector could never sit in appeal against his own order. Therefore if the appellate forum is to be determined in accordance with sec. 12 the order would still remain the order of the Collector. Therefore the appeal against such order under sec. 204 could never lie either to the Prant Officer or to the Collector himself. The Collector could never sit in appeal against his own order. Therefore if the appellate forum is to be determined in accordance with sec. 204 the appeal would not lie even to the State Government. The whole provision of sec. 204 is however subject to the relevant provision made in the Bombay Revenue Tribunal Act 1957 under which an appeal would lie from the Collectors order before the Revenue Tribunal under sec. 9 (1) read with the first entry in the first schedule. It is this appeal which is contemplated as a remedy which must be exhausted within the meaning of sec. 11 of the Bombay Revenue Jurisdiction Act 1876 in cases where that provision applies. We are proceeding in this case on the assumption that the said provision applies as the order of the Collector is the order of the Revenue Officer within the meaning of that Act. 5 Sec. 37 (3) has provided the bar of limitation in the case of a suit which must be instituted in a civil Court while sec. 11 of the Revenue Jurisdiction Act created another bar of exhausting all the remedies of appeal which are possible to be filed within the period of limitation. Except these two bars there is no third bar created by any of the relevant provisions as to the nature of the suit which can be filed. The bar of limitation which is provided in sec. 37 (3) unlike Article 14 of the Old Limitation Act 1908 is in wider terms and is applicable not only where the suit is filed to set aside the order passed in the formal inquiry under sec. 37 (2) but even where the suit is filed for claiming inconsistent relief with such order. The limitation period which it provides is one year from the date of the order under sec. 37 (2) or if the appeals had been made within the limitation period then from the date of the final appellate order by the authority determined in accordance with sec. 204. ( 5 ) MR. The limitation period which it provides is one year from the date of the order under sec. 37 (2) or if the appeals had been made within the limitation period then from the date of the final appellate order by the authority determined in accordance with sec. 204. ( 5 ) MR. Mehta however vehemently argued that if the title to the suit land is found to be in the plaintiffs then the land being not Government land the Collectors order would be an ultra vires order under sec. 37 (2) as he would have no jurisdiction to hold such an inquiry. For this proposition Mr. Mehta vehemently relied on the decision in Malkajeppa v. Secretary of State 14 Bom. L R. 332. That was a case under the old sec. 37 of the Code before the present 1912 amendment which introduced sec. 37 (2) giving power to the Collector to hold this statutory inquiry for resolving this dispute as to whether the property was private property or Government property by a formal inquiry. Under the old sec. 37 (1) the Collector had the power to dispose of the land. In that context the Division Bench had only held at page 335 that if the Collector purported to deal with the land which was prima facie the property of an individual who had been in peaceful occupation thereof and not of the Government and when he passed order with reference thereto he was not dealing with that land in his official capacity but was acting ultra vires the statute. If the order was ultra vires in that sense the provision of limitation envisaged in Article 14 of the Old Limitation Act 1908 could not apply. That decision could have no application after the amendment in sec. 37 (2) to a case where an inquiry is made under sec. 37 (2) and there is no question of disposal of the land on the assumption that it was Government land. The Legislature has now provided for a competent statutory authority in whom it had confidence viz. the Collector for deciding this dispute by a formal inquiry. The Legislature also provided that a civil suit can be filed against the decision of this competent authority provided it was filed within the limitation period enacted in sec. The Legislature has now provided for a competent statutory authority in whom it had confidence viz. the Collector for deciding this dispute by a formal inquiry. The Legislature also provided that a civil suit can be filed against the decision of this competent authority provided it was filed within the limitation period enacted in sec. 37 (3) of the Code and after exhausting all the appeals which were possible to be filed within the limitation as envisaged in sec. 11 of the Revenue Jurisdiction Act 1876 If there was no such bar the civil Court could entertain such a suit to set aside the order in the formal inquiry under sec. 37 (2) and even could grant any inconsistent relief. Therefore after this specific provision is made under sec. 37 (2) empowering the Collector to hold this statutory inquiry the order passed at the inquiry by this competent officer could never be said to be ultra vires order. Of course the inquiry being of a formal character the order has only a limited finality and is subject to the result of a competent suit in a civil Court. If the civil Court ultimately comes to the conclusion that this was a private property of an individual and not Government property the civil Court could make a declaration of the individuals property right by setting aside the order of the statutory officer or by giving inconsistent relief with this order. Therefore the authority in this case does not lack initial jurisdiction and the order could not be said to be null and void. The order in such case would be merely an illegal order when ultimately the civil Court decided title of a suit and comes to inconsistent finding as to the title being of the individual and not of the State. But until that stage is reached of decision by a competent civil Court the order could never be said to be an ultra vires order which is completely non-est as contended by Mr. Mehta so that no limitation can run against that order and against which no appeal need be filed for exhausting remedies of appeals as required under sec. 11 of the Bombay Revenue Jurisdiction Act. Mehta so that no limitation can run against that order and against which no appeal need be filed for exhausting remedies of appeals as required under sec. 11 of the Bombay Revenue Jurisdiction Act. Until a civil Court in a competent suit makes inconsistent declaration and gives relief the order would be a competent order which attracts both the bar of limitation as well as of exhaustion of alternative remedy of appeal as envisaged by sec. 11 of the Revenue Jurisdiction Act. ( 6 ) MR. Mehta had referred to the decision of the learned single Judge Raju J. in State v. Parshottam V Guj. L. R. 738 at page 740. No doubt the learned single Judge has observed that a suit for declaration that the plaintiff is the owner of the suit property is not a suit to which sec. 11 of the Bombay Revenue Jurisdiction Act applies on the ground that if the plaintiff is entitled to such a declaration the order passed by the revenue officer would be a nullity. If the order is a nullity it is not necessary for the plaintiff to file a suit to have the order set aside. With great respect to the learned Judge the decision proceeds on an assumption that the Collector lacks jurisdiction to hold an inquiry under sec. 37 (2 ). This assumption is hardly warranted when we look to the plain terms of sec. 37 (2) which empowers the Collector as competent authority to decide this dispute. Of course the decision of the Collector has limited finality subject to the decision of the competent civil Court provided the civil suit is filed within the period of limitation enacted in sec. 37 (3) and after exhausting the appellate remedy as envisaged in sec. 11 of the Revenue Jurisdiction Act. To treat such a competent order as nullity which does not attract the bar of limitation or the bar of exhaustion of alternative remedy of appeal would be to make these provisions redundant It is obvious that the civil Courts jurisdiction is expressly taken away only to that extent. Therefore there is no substance in the contention of Mr. Mehta that the order can be considered as a nullity because on that assumption every suit would get out of the bar enacted in sec. 37 (3) of the Act and sec. 11 of the Revenue Jurisdiction Act. Therefore there is no substance in the contention of Mr. Mehta that the order can be considered as a nullity because on that assumption every suit would get out of the bar enacted in sec. 37 (3) of the Act and sec. 11 of the Revenue Jurisdiction Act. ( 7 ) IN the present case we must keep in mind that the effect of this delegation of the statutory authoritys function to the Mamlatdar on the appellate forum had not been considered in any decision. Therefore even the authorities were under a complete misconception of law and an appeal had been entertained from the Mamlatdars order by the Prant Officer. In the Secretary of State for India v. Husenabu 33 Bom. L. R. 361 the Division Bench consisting of Patkar and Broomfield JJ. while considering the bar of sec. 11 of the Revenue Jurisdiction Act has in terms invoked the principle that if a party had been misled to file an appeal to the Collector because of the words of the statutory notice believing that it was optional to file an appeal and in case the party desired to file an appeal it would be sufficient if an - appeal is filed to the Collector the bar could not be invoked in such circumstances. The present case would surely come within this particular principle because the law was completely misunderstood by all concerned. Even in L. P. A. 6 of 1967 if the Mamlatdars order was to be treated as the order of the Collector the appeal would lie only to the Revenue Tribunal. The plaintiffs were clearly misled because of the terms of the notice issued to them under sec. 37 (4) read with the relevant form. They had pursued the remedy of filing an appeal before the Prant Officer. From the Prant Officers order no appeal could lie to the Revenue Tribunal. As we have already discussed the Collector could not entertain an appeal against such a delegates order. Therefore this order is one where there was no provision of any appeal which should have been exhausted looking to the facts of the present case. Mr. Nanavati had vehemently argued in this connection that if the Mamlatdars order is treated as the order of the Collector merely because the plaintiffs went to a wrong forum viz. Therefore this order is one where there was no provision of any appeal which should have been exhausted looking to the facts of the present case. Mr. Nanavati had vehemently argued in this connection that if the Mamlatdars order is treated as the order of the Collector merely because the plaintiffs went to a wrong forum viz. the Prant Officer they could not get out of the bar created by sec. 11 of the Revenue Jurisdiction Act. Once we find that the plaintiffs had been clearly misled and this is a case where the Revenue Tribunal could not entertain the appeal against the Prant Officers order it is obvious that the bar under sec. 11 could not apply to the facts of the case. Sec. 11 of the Revenue Jurisdiction Act in terms enacts that the remedy of appeals provided under the law in force has to be exhausted so far as it is possible to do so within the period of limitation provided. It is true that the extended period of limitation is provided in sec. 37 (3) for filing an appeal before the Revenue Tribunal. That would be the position as now the law is settled by this Court that the appeal from such Mamlatdars order would lie only to the Revenue Tribunal as if it were an order of the Collector himself. After this law is known to all the parties concerned a question might arise whether this remedy of appeal before the Revenue Tribunal is exhausted or not. But so far as this law was misunderstood as it had happened in this case the party having been misled would not be hit by the aforesaid bar of sec. 11 as it was not possible in the circumstances of the case to exhaust that remedy of appeal to the Revenue Tribunal as nobody had any knowledge of the true legal position that the Mamlatdars order should be treated as the Collectors order. Therefore on that short ground is must be held that the appeal of the plaintiffs in L. P. A. No. 6/67 was wrongly dismissed by the learned Single Judge. ( 8 ) AS regards the other L. P. Appeal No. 21/66 the plaintiffs suit was within the period of limitation after the appeal was decided finally by the Revenue Tribunal. Therefore they had exhausted all the remedies. There was no bar under sec. ( 8 ) AS regards the other L. P. Appeal No. 21/66 the plaintiffs suit was within the period of limitation after the appeal was decided finally by the Revenue Tribunal. Therefore they had exhausted all the remedies. There was no bar under sec. 37 (3) of limitation or under sec. 11 of the Revenue Jurisdiction Act. The learned Single Judge has however dismissed the plaintiffs suit on the ground that it was incompetent. This finding is arrived at by the learned Single Judge on the ground that no specific relief was claimed for setting aside the orders of the Mamlatdar and other revenue authorities including the Revenue Tribunal. The learned Single Judge also observed that if those orders were not brought on record in the absence of such orders no such relief could be granted and therefore the plaintiffs suit was incompetent. It is this order which has led Mr. Mehta to file an amendment application before this Court. It is not necessary however to consider that Civil Application because even without the amendment of this formal nature the plaintiffs suit must be held to be competent. ( 9 ) THE Legislature has not created any further bar than the two bars which have been created under sec. 37 (3) of limitation and under sec. 11 of the Revenue Jurisdiction Act for exhausting remedy of appeal. As the civil Courts jurisdiction has to be excluded expressly or by necessary implication the civil Courts jurisdiction can never be barred by any such assumption as to the form of the suit to be filed in this connection. Even sec. 37 (3) shows that the Legislature envisaged not only suit for setting aside the order in the formal inquiry under sec. 37 (2) but a suit for inconsistent relief. The inquiry into the title in sec. 37 (2) dispute is of a formal nature. That is why sec. 37 (3) permits Civil Court in a competent suit to decide this dispute finally provided the suit is filed within the limitation enacted in sec. 37 (3) and after exhausting the remedies of appeals are envisaged by sec. 11 of the Revenue Jurisdiction Act. When there is no such initial bar to the entertainment of a suit the civil Court on taking evidence would be deciding the dispute of the plaintiff. 37 (3) and after exhausting the remedies of appeals are envisaged by sec. 11 of the Revenue Jurisdiction Act. When there is no such initial bar to the entertainment of a suit the civil Court on taking evidence would be deciding the dispute of the plaintiff. Once the civil Court decides that this was a private property the civil Court would be entitled to give a declaration of the plaintiffs title. Even if a limited right of possession was established without establishing the plaintiffs title the civil Court would be able to protect this narrow right by injunction. These reliefs in so far as they may be inconsistent with the order of the formal inquiry under sec. 37 (2) could always be granted on proof of title or possesssory right of the plaintiffs after leading proper evidence before the civil Court. once the civil Court gives such a finding as to the title or right of possession the order at the formal inquiry which is inconsistent with these reliefs would be illegal and would not be binding and even without specifically setting aside the same the civil Court could declare that illegal order not to be binding on the plaintiffs. That was the specific relief claimed in the present suit by the plaintiffs that the order of the Mamlatdar and all other authorities including the Revenue Tribunal holding this suit land A B C D E to be of the Government be declared to be not binding and that it be declared to be of the plaintiff; ownership and an injunction may be granted. Once title or possessory right would be found in favour of the plaintiffs they would be entitled to any of these reliefs and such reliefs can be given even without specific prayer for setting aside the illegal order which would thereafter not remain binding to the plaintiff. Therefore the declaratory relief that the said order being illegal and not binding would be sufficient. A production of these orders would be material when there was a dispute about the contents of the operative part in the final order. Here the plaintiffs allegations in this connection were in terms admitted by the defendant-State as to what was the finding at the formal inquiry under sec. 37 (2 ). A production of these orders would be material when there was a dispute about the contents of the operative part in the final order. Here the plaintiffs allegations in this connection were in terms admitted by the defendant-State as to what was the finding at the formal inquiry under sec. 37 (2 ). Therefore even when these orders were not produced if there was no dispute about the finding therein and when the parties were clearly at an issue and specific issue was raised as to whether all these orders of the revenue authorities including the final order of the Revenue Tribunal were illegal ultra vires and not binding on the plaintiffs it would be absolutely technical to dismiss the plaintiffs suit on the ground that there was no specific prayer for setting aside these orders. There could be no prejudice to the defendant-State in such cases even if any amendment was necessary. Even without formal amendment such general relief of setting aside the order could have been given by the learned Single Judge. In the present case however it would be sufficient for the plaintiffs to get a declaratory relief that the aforesaid orders are not binding on the plaintiffs once they are shown to be illegal on establishment of their title or right to possession. Therefore the learned Single Judge was entirely wrong in holding the suit of the plaintiffs to be incompetent in L. P. A. No. 21 of 1966. ( 10 ) AS regards the second question the whole approach of the learned Single Judge as well as the lower appellate Court in L. P. A. No. 21 of 1966 was that the plaintiffs must establish adverse possession. It is this erroneous approach which has necessitated our close examination of this entire question of the applicability of the presumption under sec. 114 of the Evidence Act where the Government claims to be the owner by invoking statutory declaration under sec. 37 (1) of the Act. There are three binding decisions which completely settle the true position in this connection. In Ismail Ariff v. Mahomed Ghouse 20 Indian Appeals 99 at page 106 their Lordships of the Privy Council pointed out that the possession of the plaintiff was sufficient evidence of title as owner against the defendant. By sec. 37 (1) of the Act. There are three binding decisions which completely settle the true position in this connection. In Ismail Ariff v. Mahomed Ghouse 20 Indian Appeals 99 at page 106 their Lordships of the Privy Council pointed out that the possession of the plaintiff was sufficient evidence of title as owner against the defendant. By sec. 9 of the Specific Relief Act 1877 if the plaintiff had been dispossessed otherwise than in due course of law he could by a suit instituted within six months from the date of the dispossession have recovered possession notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title it is certainly right and just that he should be able against a person who has no title and is a mere wrongdoer to obtain a declaration of title as owner and an injunction to restrain the wrongdoer from interfering with his possession. Their Lordships in terms pointed out that the plaintiff who was found to be in lawful possession was entitled to have a declaration of title to the land and his suit could not be thrown out on the ground that he had not negatived the defendants title. This decision was followed by their Lordships in Nayal Services Society Ltd. v. K. L. Aledander A. 1. R. 1968 S. C. 1165. At page 1172 their Lordships pointed out that it was well-settled that possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the true owners title. At page 1173 their Lordships pointed out that it was a settled uniform view of the Courts that if sec. 9 of the Specific Relief Act was availed of by filing a suit within the period of six months limitation the plaintiff need not prove his title and the title of the defendant even did not avail him. When however the period of six months had passed the question of title can be raised by the defendant and if he did so - the plaintiff must establish a better title or fail. In other words the right is only restricted to possession only in a suit under sec. When however the period of six months had passed the question of title can be raised by the defendant and if he did so - the plaintiff must establish a better title or fail. In other words the right is only restricted to possession only in a suit under sec. 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and the title need not be proved unless the defendant could prove one. While referring to the presumption under sec. 110 their Lordships pointed out that sec. 110 of the Evidence Act embodies a principle that possession might prima facie raise a presumption of title. Nobody could deny that but that presumption can hardly arise when the facts were known. When the facts disclose no title in either party possession alone decides because in such case sec. 110 of the Evidence Act was immaterial as neither party had any title. A similar case where the title was found to be of the Government arose before their Lordships of the Privy Council in Secretary of State v. Chellikani Rama Rao I. L. R. 39 Mad. 607. The case was one of an island property which under the general law vested in the Crown The High Court had approached the question on the footing that when the original title of the Crown was known after the possession of the claimant for 20 years was found it rested on the Crown to prove that it had a subsisting title by showing that the possession of the claimant commenced or became adverse within the period of limitation i. e. within sixty years before the notification At page 631 their Lordships pointed out that nothing was better-settled than that the onus of establishing title to property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. Their Lordships also pointed out that the islands and even great spaces of jungle lands under the Indian Law vested in the Crown and its title would disappear because there would be no evidence available to establish the State of possession for sixty years past. It is too late in the day to suggest the contrary of this proposition. Their Lordships also pointed out that the islands and even great spaces of jungle lands under the Indian Law vested in the Crown and its title would disappear because there would be no evidence available to establish the State of possession for sixty years past. Their Lordships pointed out that it would be contrary to all legal principles thus to permit the squatter to put the owner of the fundamental right to a negative proof upon the point of possession. At page 683 their Lordships pointed out that in the present case the fundamental fact found was that the island in the sea belonged to the Crown. In view of this fundamental fact until adverse possession against the Crown was complete i. e. was for a period of about sixty years that fundamental fact remained and that fact formed subsisting title and it was no part of the obligation of the Crown to fortify their own fundamental right by any enquiry into possession or the acceptance of any onus on that subject. ( 11 ) THE effect of these decisions is that possession avails the plaintiffs against the entire world than the true owners. On the basis of the possession a presumption arises of his prima facie title and long peaceful lawful possession would lead to the inference of his title. It is not for the Plaintiff to negative the alleged title of the defendant nor does the plaintiff carry the burden to prove adverse possession when the title is alleged the defendant even though it may be the State. It is only when the presumption arising from the plaintiffs possession is displaced by the defendant leading evidence to establish title that the presumption under sec. 110 in view of the known fact of the defendants title ceases to be available the plaintiff. The burden thereafter shifts to the plaintiff to prove his title whether by acquisition from the defendant or by prescription the length of such adverse possession which is statutorily required in case of the defendant State would be of course sixty years under the old Limitation Act 1908 This burden shifts to the plaintiffs only in those cases where the facts are known by the defendant having shown his title. ( 12 ) EVEN the very wording of sec. ( 12 ) EVEN the very wording of sec. 37 (1) does not support Mr. Nanavatis contention that in all cases of such village site land there being a presumption of State ownership under sec. 37 (1) the burden is on the plaintiffs to prove their acquired title from She State or by way of prescription by proving adverse possession for the requisite statutory period of sixty years Sec. 37 (1) is a declaratory provision which uses the expression all lands wherever situated are hereby declared to be the property of the Government. Se c. 37 however in terms enacts qualifying words which are not the property of the individuals or of aggregate of persons legally capable of holding property and excepting so far as any right of such persons may be established in or over the same ? and except as may be otherwise provided any law for the time being in force. Therefore the ownership of the Government of all the village site lands is declared under sec. 37 (1) of the code in those lands which are not the properties of individuals and excluding the rights if any of such persons which may be established by such individuals. The right of possession might be aided by presumption under sec. 110 of the Evidence Act and may be prima facie proof of the title of the concerned individual. Such title may be established by recourse to the presumption under sec. 110 of the Evidence Act. Therefore there is implicit recognition in sec. 37 (1) of the application of the rule in sec. 110 of the Evidence Act because the whole right of the State Government is declared subject to the individual establishing his own property right or other rights. The right may be established by direct proof or by recourse to the presumption arising under sec. 110 of the Evidence Act. When the plaintiff is thus aided by presumption of prima facie title the burden would immediately shift to the defendant - State to establish its title. The right may be established by direct proof or by recourse to the presumption arising under sec. 110 of the Evidence Act. When the plaintiff is thus aided by presumption of prima facie title the burden would immediately shift to the defendant - State to establish its title. It is only when the facts are known by the defendant-state establishing its own title by showing that the property vas originally unoccupied village site land which vested in the State as it was not the property of any individual that the presumption would cease to be available to the plaintiffs or the burden would shift on the plaintiff to prove their acquired title or one obtained by adverse possession for the requisite statutory period of sixty years under the old Limitation Act 1908 ( 13 ) VARIOUS decisions were cited in this connection which do not lay down any different principle. In Bhagvansing v. Secretary of State 10 Bom. L. R. 571 the Division Bench consisting of Russell and Balty JJ. in terms held at page 573 that possession was in itself title in the absence of proof displacing the presumption that arises from possession. The man in possession starts with this presumption in his favour and the case of Ismail Arif before the Privy Council was cited as an authority for this proposition. The Division Bench held that the plaintiff starts with the presumption in his favour and the maxim proesumitur retro applies and it is therefore for the defendant to show that not only that plaintiffs possession was no evidence of his title but that the defendant has superior title to that of the plaintiff. The plaintiff is not called upon to prove adverse possession for if it was necessary to do so he would have to show 60 years adverse possession as against the Secretary of State. ( 14 ) IN Hanmantray v. The Secretary of State for India I. L. R. 25 Bombay 281 the third Judge Ranade J. when the matter was referred to him in terms held at page 303 that under sec. 110 possession when long and continued upto a recent date leads to a presumption of title. The learned Judge also pointed out the character of possession which under sec. 110 leads to presumption of ownership. It was held that mere wrongful possession was insufficient to shift the burden of proof. 110 possession when long and continued upto a recent date leads to a presumption of title. The learned Judge also pointed out the character of possession which under sec. 110 leads to presumption of ownership. It was held that mere wrongful possession was insufficient to shift the burden of proof. That a prima facie title must be founded on the prima facie right which alone can shift the burden on the defendant to prove his superior title. If therefore the plaintiffs possession was not wrongful and it was founded on a prima facie title it must be protected under sec. 110 till the defendant established better title. In Surji v. Secretary of State for India 39 Bom. L. R. 216 the Division Bench pointed out that the character of possession which would shift the burden under sec. 110 on the defendant must be one founded on a prima facie right. If however the plaintiff only establishes mere acts of user like tethering cattle or depositing articles like fodder grass and earth on the site such acts of mere undisturbed user would not have a character of possession which would help the plaintiff to get benefit of the presumption under sec. 110. The Division Bench in term approved the test of Ranade J. in Hanmantrays case that possession within the scope of sec. 110 must be possession founded on prima facie right or of a character which leads to presumption of title. It is in this context that it is held to be sufficient prima facie proof of title. In L. P. Appeal No 27 of 1965 which came up before me and Patel J. and which was decided on October 9 1969 (Chhotalal Bhaijibhai v. State of Bombay now Gujarat) speaking for the Division Bench I have pointed out that where there were acts of user like tethering cattle or using the site for depositing articles such user of the adjoining land would never help the plaintiffs to invoke presumption under sec. 110. 110. It is in the context of that case that where there was no possession in the sense of possession with prima facie title that it was held that the Governments title having been known because of the village site land having vested in the Government to oust their title the plaintiff must prove acquisition of title from the State or the adverse possession for the statutory period of 60 years. ( 15 ) MR. Nanavati however vehemently relied upon the decisions where it had been held that the plaintiff must prove adverse possession against the State. These are all the decisions where the facts are known and the title of the defendant-State having been established it can be ousted only by the plaintiffs proving clear title from the State or by adverse possession for 60 years. In such cases the presumption under sec. 110 could not help the plaintiff because the facts were known that the defendant-State had title in the village site land in question. It is well-settled that just as title follows possession is a presumption under sec. 110 of the Evidence Act there is the converse presumption that possession follows title as pointed out by the Full Bench in Krishnaji v. Madhusha A. I. R. 1934 Bombay 207 at page 209. Therefore where the facts are known that there are mere acts of undisturbed user which fell short of legal possession such user made of the adjacent site would not attract the presumption under sec. 110 of the Evidence Act. Similarly where the title of the State is known the fact of this title being known by the defendant having showed title the burden shifts to the plaintiff to prove acquired title from the State or one by adverse possession for 60 years. In Vesta v. Secretary of State for India 23 Bom. L. R. 238 the Division Bench had to deal with the case where the land in dispute was a Gabhan or village site land and it was established before the Court that the lands were originally waste or unoccupied land which vested in the State under sec. 37 (1) of the Code. L. R. 238 the Division Bench had to deal with the case where the land in dispute was a Gabhan or village site land and it was established before the Court that the lands were originally waste or unoccupied land which vested in the State under sec. 37 (1) of the Code. In that context the Division Bench held that the Secretary of State having been able to show that he is the owner of the land in question in order to oust him the plaintiff has to prove either that he has got better title than the Secretary of State or that he has title by adverse possession i. e. for 60 years. In Secretary of State v. Chimanlal A. I. R. 1942 Bombay 161 the Division Bench consisting of Divetia and Macklin JJ. also held at page 171 that the presumption under sec. 110 would apply only if two conditions are satisfied that the possession of the plaintiff is not prima facie wrongful and secondly the title of the defendant is not proved. These two conditions are stated by their Lordships because when these facts are known there could be no room for application of sec. 110. If the possession in its origin was unlawful as it happened in this case where on the expiry of the lease from the State the plaintiff walked in on the State land or if the title of the State was proved it is well-settled right from the decision of the Privy Council in Chellikani Rama Raos case I. L. R. 39 Mad. 617 (631) that when that fact is known that fundamental fact would itself be the evidence of subsisting title so that in order to oust such a defendant with title the plaintiff must prove either acquisition of title from the State or one by adverse possession for the requisite statutory period of 60 years. These two decisions as well as the aforesaid decision of the Privy Council in Chellikani Rama Raos case do not lay down any different proposition so as to enable Mr. Nanavati to contend that there is any difference in legal position when the State alleges its title to the village site land under sec. 37 (1) so that the plaintiff could not avail of presumption under sec. 110 of the Evidence Act and must prove his adverse possession. Nanavati to contend that there is any difference in legal position when the State alleges its title to the village site land under sec. 37 (1) so that the plaintiff could not avail of presumption under sec. 110 of the Evidence Act and must prove his adverse possession. In view of the aforesaid settled legal position it is obvious that the learned Single Judge as well as the lower appellate Court applied the wrong test that the burden was on the plaintiff to prove adverse possession even though the facts were not known which would establish the States title to the land in question. In such cases as in L. P. A. No. 21 1966 where the date of entry into possession of the plaintiffs is shrouded in mystery the very fact of such long peaceful and lawful possession would itself establish the title of the plaintiff and there is no burden on the plaintiffs to prove adverse possession for the statutory period of 60 years. That burden would have to be carried by the plaintiff only where the defendant - State establishes its title to such land by showing that at a particular point of time the land was unoccupied village land which vested in the State and therefore to oust such defendant with title the plaintiff must show a better title by proving acquisition of title from the State or by proving adverse possession of 60 years. It is in the light of these legal principles that we will have now to decide the two Letters Patent Appeals on their merits. . . . . . . . . . . . . . . . . . . . . [the rest of the judgment is not material for the reports]. L. P. A. 21/66 allowed:- L. P. A. 6/67 dismissed. .