THAKORE HIMATSINH BHUPATSINH v. STATE — 1984 DIGILAW 253 (GUJ)

R. A. MEHTA, J. ( 1 ) IN this Second Appeal the following three questions have been framed as substantial questions of law:1. Whether the lower appellate court erred in holding that the plaintiff in the suit challenges the order of the Mamlatdar dated 23/03/1964 though there is neither such prayer in the plaint nor any issue regarding the legality or validity of the said order?2. Whether the lower appellate court erred in upholding the judgment and decree of the trial court which dismissed the plaintiffs suit as barred by law of limitation?3. Whether the plaintiff who is having a valid title and who is in possession need challenge an illegal ultra vires and void order from its inception of he can defend his title and possession when physically obstructed by filing a suit for injunction ignoring such illegal ultra vires and void order The learned counsel for the appellant submits that the lower courts have dismissed the suit of the plaintiff on the ground of limitation and all these questions have bearing on the question of limitation. ( 2 ) THE relevant facts are: the appellant-plaintiff is the son of ex-jagirdar of Sarvana. That jagir has been abolished with effect from 1/08/1954 under the Jagir Abolition Act. It is the case of the plaintiff that the Mamlatdar as a delegate of the Collector had held an inquiry under sec. 37 (2) of the Bombay Lan Revenue Code in respect of the land of 5. No. 210 of village Sarvana (276 Acres and 16 Gunthas ). By an order dt. 13/11/1962 the Mamlatdar had passed an order holding the father of the plaintiff to be the owner of the suit land and to enter his name in the record of rights. In appeal the Collector by his order dt. 23/12/1963 remanded the matter to the Mamlatdar for a fresh decision on merits according to law after taking into consideration various documentary evidence. On remand the Mamlatdar by his order dt. 23/02/1964 held that the suit land belonged to the State and that the possession of the father of the plaintiff was unauthorised. The plaintiff s father filed Regular Civil Suit 57/54 challenging the decision of the Mamlatdar but said suit was later on withdrawn on 4-11-1965 with a permission to file a father suit on the same cause of action. 23/02/1964 held that the suit land belonged to the State and that the possession of the father of the plaintiff was unauthorised. The plaintiff s father filed Regular Civil Suit 57/54 challenging the decision of the Mamlatdar but said suit was later on withdrawn on 4-11-1965 with a permission to file a father suit on the same cause of action. The fresh suit was filed after about 5 years and was registered as Civil Suit No. 7/69 and that was also withdrawn on 10/12/1969 with a permission to file fresh suit. However no fresh suit was filed by the father of the plaintiff and the present Regular Civil Suit No. 76/73 has been filed by the present plaintiff the son of the original ex-jagirdar. ( 3 ) THE first order dated 13-11-62 is at ex. 95. The order of the Collector dt. 23-12-63 is at ex. 96. hat order was passed after hearing the ex-jagirdar Shri Bhupatsinh Thakore through his learned advocate Shri C. N. Shah. The Collector found that the Mamlatdar had submitted the inquiry papers to the P. O. and on security of the papers the Collector found that the claimant Jagirdar had not proved by any documentary evidence that the area under 5. no. 210 was a forest land and the Jagirdar had given a contract for cutting or realised any income as forest produce therefrom. The Collector referred to the evidence led by the Jagirdar and held that there was only oral evidence and as against that there was evidence of the Range forest officer who was conversant with the forest matters and according to him it was mainly a hilly track area and not forest area. It was also that question of sharing the income from the land with the ex-Idar State and there was evidence in that behalf and thereafterfore the Collector remanded the matter to the Mamlatdar for deciding the case after going thorough all the past records and document for the purpose of deciding the question of ownership over the forest land The Mamlatdar recorded The evidence of the claimant Jagirdar on 15/03/1964 and thereinafter decided the matter against the criminal Jagirdar. Against the order of the Mamlatdar under sec. Against the order of the Mamlatdar under sec. 37 (2) of the Bombay Land Revenue Code the Jagirdar did not prefer any appeal but he fired Regular Civil Suit No. 57/64 for a declaration that the order of the Mamlatdar dt. 23/03/1964 and the order of the Collector in suo motu proceedings passed on 3/12/1963 were illegal unconstitutional ultra vires void and not binding to the plaintiff Jagirdar. It was also stated in para 10 of the plaintiff in that suit (ex. 94) that the cause of action had arisen on 30/12/1963 when the Collector passed order and on 23/03/1964 which the Mamlatdar passed the impugned order. That suit was withdrawn by the plaintiff Jagirdar with a permission to file fresh suit on the same cause of action. ( 4 ) NO suit was filed for about 4 years and Regular Civil Suit No. 7/69 was withdrawn with a permission to file fresh suit on the same cause of action. The Jagirdar did not file any fresh suit. ( 5 ) HOWEVER the son of the Jagirdar has filed the present suit on 27/08/1973. In the prayer para 12 he prayed that the order of the Collector and of the Mamlatdar dt. 23/03/1964 are illegal ultra vires null and void and therefore. injunction be issued restraining the defendants their agents and servants from interfering with the working of the mines and taking of the stones by the plaintiff and his contractors from the suit land. ( 6 ) SEC. 37 (3) of the Bombay Land Revenue Code provides for the period of limitation for filing a suit. It reads as under:" (3) Any suit instituted in any Civil Court after the expiration of one year from the date of any order passed under sub-see. (1) or sub-sec. (2) or if one more appeals have be 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 inconsistents such order provided that in the ease of an order under sub-sec. 2 the plaintiff has had due notice of such order". 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 inconsistents such order provided that in the ease of an order under sub-sec. 2 the plaintiff has had due notice of such order". IN the present case it is not disputed that the order of the Mamlatdar passed under sec. 37 is dated 23/03/1964 The present suit has been filed of 9 7/08/1973 Even excluding the time taken in the previous two suits filed by the father of the present plaintiff the suit is beyond the expiration of one year from the date of the order of the Mamlatdar. Therefore the owner courts have held that the suit was barred by limitation. ( 7 ) THE contention of the appellant is that this order of Mamlatdar after remand by the Collector is without jurisdiction and nullity and. therefore he can defend his title and possession without filing a declaratory suit at any time whenever his possession is sought to be disturbed. He has also submitted that he has not challenged the order of the Mamlatdar and there was no such prayer in the plaint not any issue regarding the illegality and validity of the said order. ( 8 ) FROM the reading of the plaint and the prayer it is amply clear that the plaintiff does challenged the order of the Mamlatdar dt. 23/03/1964 and that is also the basis of the prayer and it is referred to in the prayer clause itself and the parties have gone to the trial and contested the suit withe their attention focused on these orders. Therefore there is no error of the lower courts when they hold that the plaintiff has challenged the order of the Mamlatdar dt 23/03/1964. In fact without such challenge there would be no basis for his prayer in the suit for protecting his possession if the order of the Mamlatdar dt. 23/03/1964 holding him to be in unauthorised occupation the land stands his present possession cannot be said to be awful and no court would protect him. In fact without such challenge there would be no basis for his prayer in the suit for protecting his possession if the order of the Mamlatdar dt. 23/03/1964 holding him to be in unauthorised occupation the land stands his present possession cannot be said to be awful and no court would protect him. therefore in order to succeed he must prove that that order of the Mamlatdar was illegal and void the court is required to adjudicate that question and without adjudication of that question the plaintiff cannot get any relief 1st the suit. However whether he prays for setting aside that order or for a declaration that that order is null and void or for an injunction for restraining implementation of that order or for any other relief in the suit which is inconsistent with that order. of the Mamlatdar clearly brings him within the purview of sec. 37 (3) because. it provides for the limitation of one year if suit is brought to set aside order or if relief claimed is inconsistent with such order. In the present case. the relief claimed is clearly inconsistent with the order of the Mamlatdar. Therefore if the relief claimed is granted the order of the Mamlatdar is a nullified. A civil suit for such a relief has to be filed within the prescribed period of limitation and that has not been done in the present case. ( 9 ) THE learned counsel for the appellant has strongly relied on the judgment in the case of DALLUMIYA LALMIYA MALEK V. STATE OF GUJARAT 12 G. L. R. 668 and submitted that the Mamlatdar acting as a delegate of the Collector had passed his order in 1962 holding the ex-jagirdar to be the owner of the suit land since the order of the Mamlatdar was as a delegate of the Collector such order is deemed to be that of the Collector and the Collector himself could not have sat in appeal revising or cancelling the older of the Mamlatdar and therefore the order of the Collector is absolutely without jurisdiction and the proceedings taken by the Mamlatdar in pursuance of the Under of remand by the Collector is also necessarily without jurisdiction null and void. The Division Bench has held that the Collector has no power to entertain any appeal against the order of the Mamlatdar exercising the powers of the Collector as a delegate under sec. 37 of the Bombay Land Revenue Code. ( 10 ) IN the present case the order of the Collector was acquiesced into by the father of the plaintiff. He appeared in the remand to the Mamlatdar and participated in the proceedings before the Mamlatdar by leading his evidence on 15/03/1964. He took a chance of getting a favourable decision before the Mamlatdar who is certainly competent statutory officer having jurisdiction to decide the question under sec. 37 of the Code. Having conducted himself in this manner and having led the other side to proceed on that basis it would not be open for him to turn round after 10 years an contend that the order of the Collector was without jurisdiction. If such an objection was taken at that time appropriate proceedings would have been taken and decision on merits would have been giver by the competent appellate authority. Instead the parties went to the competent original authority namely the Mamlatdar and invited a decision on merits. After the decision on merits the jagirdar could have his grievance redressed by going in appeal or by filing civil suit. The Civil suit was filed within one year challenging the order of the Mamlatdar. However that suit was withdrawn with permission to file a fresh suit. No fresh suit was filed for four years. After four years another suit was filed; that was also withdrawn. After about three years of the withdrawal of that suit the present suit is filed by the son of the original jagirdar. This is clearly barred under sec 37 of the Code. There is no doubt that the Mamlatdar is competent statutory officer to decide questions under sec. 37 (2) of the Code and he has passed the impugned decision and order dt. 23/03/1964 and if any suit were to be filed for seeking any relief inconsistent with that order that has to be filed withe one year of the dale If that order. Since the present suit is hopelessly beyond one year it is clearly barred by the provisions of limitation contained in sec. 37 (3) of the Code. ( 11 ) IN the result the judgments and decrees of. Since the present suit is hopelessly beyond one year it is clearly barred by the provisions of limitation contained in sec. 37 (3) of the Code. ( 11 ) IN the result the judgments and decrees of. the lower courts are required to be confirmed and the Second Appeal deserves to be dismissed and all questions required to be answered against the appellant. ( 12 ) IT appears that inspite of having lost in all the courts under inter relief the appellant has been enjoying the fruits of the snit land for all these years more than two decades. At the time of granting of interim relief in High Court the petitioner was directed to furnish security in the sum of Rs. 5 0 to the satisfaction of the trial court within three months. That order was passed on 21/08/1978 The respondent State will be at liberty to enforce that security and to take appropriate further or separate proceedings according to law if it has suffered any damage or loss during all this period. 13 In the result the Second Appeal fails and is dismissed with costs. (ATP) appeal dismissed. .