N. H. BHATT, JJ. ( 1 ) XXX xxx xxx ( 2 ) XXX xxx xxx ( 3 ) XXX xxx xxx ( 4 ) XXX xxx xxx ( 5 ) XXX xxx xxx ( 6 ) XXX xxx xxx ( 7 ) XXX xxx xxx ( 8 ) THE Scheme of the Saurashtra Land Reform Act 1951 is to be closely examined. As its preamble shows it was in Act for the improvement of land revenue administration and for ultimately putting an end to the Girasdari system prevalent in Saurashtra. The aim also was to regulate the relationship between the Girasdars and their tenants with the ultimate idea to enable the tenants to become occupants of the land held by them and to provide for the payment of compensation to the Girasdars for the extinguishment of their rights. The term `girasdar is defined in Sec. 2 (15) of the Act as any talukdar bhagdar bhayat cadet or mulgirasia and included any person whom the Government declared so by a notification in the official gazette. Gharkhed is another important term which is going to tilt the balance in the present case. The term Gharkhed is defined in Sec. 2 as any land reserved by or allotted to a Girasdar before the 20th May 1950 for being cultivated personally and in his normal cultivation. So no land can be Gharkhed land unless it fulfills the above said two requirements. It must be land reserved by a Girasdar before the said date of 20-5-1950 or it must be allotted to Girasdar before the said date by some competent authority. The second requirement is that such land must be in the personal cultivation of the Girasdar before it could be designated as Gharkhed. `personal cultivation is defined in clause 2 (11) as cultivation on ones own account by ones own labour or by the labour of any member of ones family or by servants on wages payable in cash or kind but not in a sham of the crops or by hired labour under ones personal supervision or the personal supervision of any member of ones family. The word `tenant also has been referred to in Sec. 2 (30) as an agriculturist who holds land on lease from a Girasdar or a person claiming through him and included a person who is deemed to be a tenant under the prod dons of this Act namely Sec. 6 of the Act. Sec. 6 defines who a deemed tenant is. Any person lawfully cultivating any land belonging to a Girasdar was to be deemed to be the tenant for the purpose of this Act provided he was not a member of the Girasdars family or was not a servant on wages or was not a mortgagee in possession. ( 9 ) THE Act deals with the Allotment of land to Girasdar for personal cultivation. Sec. 19 (1) deals with it and it presupposes that the land is to be allotted from the tenants as defined hereinabove. Sec. 20 deals with the procedure of the Mamlatdar and under sub-sec. (3) of Sec. 20 the Mamlatdar is authorised to issue an occupancy certificate to a Girasdar in respect of his Gharkhed land and also of the land allotted to him under this Section. Sec. 20 (3) of the Act is the first provision that deals with issuance of an occupancy certificate and it envisages two kinds of lands. Occupancy certificate is to be issued in respect of Gharkhed land which as said above is the land in cultivation of the Girasdar. Personal cultivation has also been already referred to and it is not the constructive cultivation that is covered by the definition of the word cultivate personally. So if any land is not under personal cultivation of a Girasdar it cannot be designated as Gharkhed land and no occupancy certificate in respect of any land other than Gharkhed land or any land with the tenant would be issued by the Mamlatdar. Sec. 39 is another provision which refers to occupancy certificate. The said Section also authorised the Mamlatdar to issue an occupancy certificate to the Girasdar in respect of the Gharkhed land compprised in his estate and the land allotted to him in accordance with the provisions of Chapter IV namely land with tenants. So Sec. 20 (3) of the Act or Sec. 39 of the Act deal with only two kinds of lands regarding which the Mamlatdar can issue the occupancy certificate. So Sec. 20 (3) of the Act or Sec. 39 of the Act deal with only two kinds of lands regarding which the Mamlatdar can issue the occupancy certificate. Such land must be stated to be Gharkhed land as referred to above or it must be the land with the tenant which is allotted to the Girasdar for purpose of personal cultivation. Nowhere in the Act any other type of land is envisaged in respect of which the Mamlatdar is competent to issue the occupancy certificate. ( 10 ) THE certificate in question is Ex. 21 and the Mamlatdars order is Ex. 48. We may assume for the sake of argument and for the purpose of those two documents that the plaintiff was a Girasdar. We may also assume that on the advent of this Act the Girasdari tenure came to be abolished and all land became liable to pay land revenue. It was an admitted case before the Mamlatdar when he purported to issue the certificate under Section 21 and/or 39 of the Act that the land was not in personal cultivation of the plaintiff nor was it with the defendants as tenants either actual or deemed. It was the burden and basis of contention of the plaintiff all throughout that the defendants were his mortgagees in possession or were trespassers. So the very assumption of jurisdiction by the Mamlatdar while initiating the proceedings was an act without jurisdiction on his part. In other words it was an order non est exfacie and such an order even if not appealed against can be challenged in any collateral proceedings as and when such an order is pleaded in defence or as a weapon of attack by the holder of that certificate. That is exactly what has happened in the case on hand. The plaintiff went to the court by filing that suit of 1970 with an allegation that he had been adjudged to be an owner occupant by the Mamlatdar as per his order Ex. 48 followed by the occupancy certificate Ex. 21 He also categorically asserted in the plaint that the defendants were trespassers. So the said certificates could not be availed of by the plaintiff for the purpose of seeking eviction of the defendants. 48 followed by the occupancy certificate Ex. 21 He also categorically asserted in the plaint that the defendants were trespassers. So the said certificates could not be availed of by the plaintiff for the purpose of seeking eviction of the defendants. So in my view the conclusion is inevitable that the learned appellate Judge had wrongly acted on the said certificate which was not in accordance with the provisions of Saurashtra Land Reforms Act even as per the admitted facts. ( 11 ) ON the question of adverse possession also the learned appellate Judge has clearly gone wrong. In the year 1954 the application under the Debtors Relief Act was made and it was contested by the defendants who asserted their ownership. Not only the mortgage was denied but the plaintiffs title also was denied even in those proceedings initiated in the year 1954. Mortgage is held to be non-existant between the parties by the judgment of the competent civil authority. No other basis of title remained to be pleaded in the case on hand. So the plaintiffs suit was liable to be dismissed for want of any title in him to be shown existing on the date of the filing of the suit. Even the circumstances clearly indicate that the defendants who were in possession long prior to the year 1950 were asserting their hostile claim openly and therefore their possession could be designated as adverse for all legal purposes. On this count also the plaintiffs suit was liable to be dismissed. ( 12 ) IN view of my above two categorical findings I do not think it necessary to deal with the contention about res judicata which was decided by the District Court in the earlier round of appeal in this very suit against the defendants It is to be noted that initially the suit was dismissed by the trial court on the ground that it was barred by res judicata. The decree of dismissal of the suit was reversed by the appellate court by holding that the bar of res judicata did not get attracted. There was thus a decree of the appellate court against the defendants and in favour of the plaintiff which could have been appealed against. The decree of dismissal of the suit was reversed by the appellate court by holding that the bar of res judicata did not get attracted. There was thus a decree of the appellate court against the defendants and in favour of the plaintiff which could have been appealed against. Whether in the present second appeal this question can be reagitated or not is not gone into by me because on the first two points already dealt with by me this litigation can be concluded. ( 13 ) THE result is that this second appeal stands allowed by restoring the judgment and decree of the this trial court. In the circumstances of this case the parties shall bear their own costs throughout. Appeal allowed. .