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2010 DIGILAW 1568 (BOM)

Maria Julieta D'Souza v. Government of Goa

2010-10-21

N.A.BRITTO

body2010
JUDGMENT 1. Heard Shri. V. B. Nadkarni, learned Senior Counsel on behalf of the Appellants and Shri. G. Shirodkar, learned Government Advocate on behalf of the Respondent. 2. This appeal is directed against Judgment dated 25-7-2007 of the learned District Judge, Panaji, by which the suit filed by the Appellants for declaration and a consequential relief has been dismissed. 3. The parties hereto shall herein after be referred to in the names as they appear in the cause title of the said Civil Suit. 4. The case of the plaintiffs, in brief, was that there was a large property known as "VITES" having land registration No.5386 and cadastral survey No.1046 prepared by the Government in the year 1904 to 1905 which was bounded on the north by the property of the Government, and which originally belonged to Joaquim Thomas Xavier de Rego and others, and was hilly land. According to the plaintiffs, Domingos Caetano de Souza, father of plaintiff No.1 had purchased the said entire property from the Rego family more than 70 years back and had paid the entire price due to them but the sale deed remained without being executed but the said Domingos Caetano de Souza had taken exclusive possession of the same, over 70 years back, and he was in continuous possession and enjoyment of the same for over 70 years publicly and as a matter of right as owner thereof and had planted cashew trees, mango trees, cocum (brindao) trees and appropriated its produce without any disturbance whatsoever and the said property was enclosed by boundary wall which was several decades old. According to the plaintiffs, the said Domingos Caetano de Souza was the father of plaintiff No.1 and of late Manuel Antonio Teotonio Francisco Perpetua Sucorro de Souza @ Manuel D'Sozua and the said Manuel Antonio Teotonio Francisco Perpetua Sucorro de Souza expired on 14-10-1996 leaving behind plaintiff No.2 as his widow and plaintiff Nos.3 and 4 as the sole and universal heirs. 5. 5. The plaintiffs further claimed that after the death of Domingos Caetano D'Souza, plaintiff No.1 who lived in the immediate neighbourhood of the suit land took care of the property and planted a great number of trees thereon such as cashew trees, mango trees, cocum trees and enjoyed the fruits of the same as well as of the trees earlier planted by the father, as aforesaid, continuously, over the years and plaintiff No. 1 also cut down a number of trees and appropriated its produce. On the cadastral survey plan, the names of the owners of the said land in actual possession are indicated and the suit land is separated from other lands by boundary walls which earlier the father of plaintiff No.1 and after his death plaintiff No. 1 has carefully kept and maintained over the years but in the recent survey conducted by the Government a sizable portion of the said property of plaintiff No.1 has wrongly been shown as Government land and the said portion has been shown as part of Chalta No.4-B which lies entirely within the boundaries of the property bearing registration No.5386 which belonged to the Rego family, and with which the Government had nothing to do. The plaintiffs claimed that the plaintiffs were in possession of the said land without disturbance from anyone whatsoever, peacefully, publicly and continuously as of right for the last over 30 years and prior to that, the father of plaintiff No.1 held the same as his own. The plaintiffs claimed that1he portion of Chalta No.4-B in possession of the plaintiffs was marked in red on the plan annexed to the plaint and it admeasured about 6100 sq. meters, and the rest area of Chalta No.4-B admeasured 20,000 sq. meters which does not belong to the plaintiffs. The plaintiffs claimed that the road was widened and the land acquisition proceedings were instituted and a strip of land from Chalta No.19A and a strip from Chalta No.4-B was acquired for the purpose of road widening, and the compensation was paid to plaintiff No.1 both in respect of the strip to the west of Chalta No.19-A and to the west of Chalta No.4-B. which belongs to plaintiff No.1 and plaintiff No.1 having filed a reference, the compensation payable was enhanced. The plaintiffs claimed that because there was entry in the name of Government in Chalta No.4-A which included the land of the plaintiffs, the plaintiffs made an application on 5-10-1987 under Section 14 of the Land Revenue Code to the Sub-Divisional Officer, Panaji, and at the instance of the Director of Land Survey, the Chief Engineer, P.W.D., Government of Goa, was impleaded as a party to the said proceedings, and after the inquiry began, the defendant raised a preliminary objection on the point of jurisdiction, and as such, by Order dated 20-8-1993 the application dated 5-10-1987 came to be dismissed, whereupon the plaintiffs filed a review application which came to be dismissed by Order dated 12-4-1995 and then filed a Writ Petition bearing No.275/ 1996 for quashing the said Orders dated 20-8-1993 and 12-4-1995 but the said Writ Petition came to be dismissed by Order dated 7 -8-1996 with the observation that the plaintiff No.1 was free to agitate the issue in a Civil Court whereupon the plaintiffs served a notice to the Government of Goa, dated 27-7-1997 calling upon the Government to direct the land in question to be shown in the record of City Survey in the name of plaintiff No.1, and as there was no reply, the plaintiff filed the suit on 27 -11-1998 claiming a declaration that the plaintiffs were absolute owners of the suit property admeasuring 6100 sq. meters forming part of Chalta No.4-B, and further that the Government of Goa had no right or interest to the same. A direction was also sought to the Collector to allot a separate Chalta number to the suit land and to record the same exclusively in the name of the plaintiffs as its sole occupants. 6. The defendant contested the suit, and stated that it was barred by law of limitation, and that the suit also did not disclose any cause of action. The case of the defendant was that the property surveyed under Chalta No.4-B of PT. Sheet No.85 belonged to the Government and the same is confirmed by the City Survey Officer in the name of the Government vide Order dated 9-4-1979. The contents of para 4 were denied for want of knowledge. The case of the defendant was that the property surveyed under Chalta No.4-B of PT. Sheet No.85 belonged to the Government and the same is confirmed by the City Survey Officer in the name of the Government vide Order dated 9-4-1979. The contents of para 4 were denied for want of knowledge. The defendant claimed that after proper inquiry, the Inquiry Officer by his Order dated 9-4-1979 held that Chalta No.4-B of P.T. Sheet No.85 belongs to the Government and the plaintiffs had not challenged the findings of the Inquiry Officer either by way of appeal or revision nor they filed a suit within one year challenging the said order. According to the defendant, 6100 sq. meters forming part of Chalta No.4-B was not in possession of the plaintiffs, and that it belonged to the Government and the same was in its rightful possession. As regards the compensation due on account of acquisition, the Government pleaded that they were not aware of the same nor of the reference made for enhancement of the same. It was further pleaded that plaintiffs application dated 5-101987 was rightly dismissed by the Deputy Collector and so also the review application. According to the defendant, the plaintiffs were not entitled to any declaration as the order of the Inquiry Officer was not challenged by the plaintiffs in time. 7. Two issues were framed by the Court. The first was whether the plaintiffs were the absolute owners of the suit property, and the second is as regards limitation. Plaintiff No. 1 had filed her affidavit in evidence and was partly cross-examined on behalf of the defendant but subsequently attorney of plaintiff No.1 was examined. This was after the plaintiffs filed an application dated 14-12-2004 stating that plaintiff No. 1 was medically advised not to take any mental tension and stress. 8. By Order dated 10-6-2005 of the learned trial Court, a Commissioner was appointed and who submitted a Report dated 20-12-2005. The Commissioner was directed to do the work of survey in the presence of a surveyor by name Anand V. Vaingankar, suggested by the Government. The said Commissioner along with the said surveyor identified the location of the old stone boundary wall, being part of the northern boundary of the property as per the old cadastral survey plan under No. 1046. The said Commissioner along with the said surveyor identified the location of the old stone boundary wall, being part of the northern boundary of the property as per the old cadastral survey plan under No. 1046. He prepared a plan by super imposing cadastral survey plan No.1046 on Chalta No.4-B of P.T. Sheet No.85. He has identified the area in dispute of Chalta No.4-B as 6250 sq. meters. No objections were filed to the said report of the Commissioner which in terms of Order 26, Rule 10(2), C.P.C. has to be considered as evidence in the suit. On this aspect, reliance is also placed on the decision of the Delhi High Court in the case of M/s. New Multan Timber Store and others Vs. Rattan Chand Sood (1997 AIHC 4288) wherein it is held that the report of the Commissioner under O.26, R.10, C.P.C. is legal evidence, and, therefore it is not necessary for the Court to examine the Commissioner for the purposes of proving the said report. No formal proof is needed to prove the report when the Commissioner has been appointed under Order 26, Rule 10, C.P.C. though the Court may suo motu or at the instance of the parties summon the Commissioner and examine him as a witness. 9. The parties, particularly the Government did not raise any objections to the said report of the Commissioner and on the contrary the defendant's witness has tacitly admitted that the suit property is part of old cadastral No. 1046 though he did not admit that the area of the suit property was 6100 sq. meters. He has also admitted that there was old cadastral survey plan prepared by the Survey Department, during the Portuguese regime. He had also admitted the existence of the lose boundary stone walls existing on one side of the suit property which has been depicted by the Commissioner to be the northern boundary of the suit property which is claimed by the plaintiffs. 10. The plaintiffs in support of their case had relied upon the said cadastral survey plan at Exh.C-35, matriz certificate at Exh.36. 10. The plaintiffs in support of their case had relied upon the said cadastral survey plan at Exh.C-35, matriz certificate at Exh.36. The award of the Land Acquisition Officer at Exh.38, Judgment of the reference Court dated 30-6-1983 in Land Acquisition Case No.30 of 1971, and the Deed of Partition dated 30-11-1920 by which three Rego brothers by name Circumcisao, Joaquim and Pedro, all bachelors divided two properties, namely "VITES" (suit property) and "Antigo" belonging to Xavier do Rego and his wives of the first and second marriages, and the property was allotted to the said Joaquim with exclusion of the lands sold with obligation to pass on the documents of conveyance unto the purchaser amongst whom is the said Domingos Caetano D'Souza, the father of plaintiff No.1, amongst other documents. The defendants had relied upon a copy of the public notice issued in connection with the City Survey dated 13-11-1978 and form D which shows the name of the Government in respect of Chalta No.4-B admeasuring 20,000 sq. meters. 11. The learned District Judge held both the issues as not proved. The learned District Judge noted that the cadastral survey No. 1046 showed that the suit property and other properties were private properties but it did not show that it belonged to the plaintiffs. The learned District Judge also noted that no title document was produced by the Government to show that the suit property belonged to the Government except the Order of the City Survey Officer but observed that any weakness in the defendant's case would not entitle the plaintiffs to get a decree in their favour and the plaintiffs had to stand or fall on their own legs. The learned District Judge conceded that it had come on record that the suit property was a private property but the plaintiffs had failed to prove the ownership over the same, and, therefore the plaintiffs could not be declared to be the owners. The learned District Judge with reference to the Partition Deed dated 30-11-1920 observed that some parts of the property "VITES" was orally given to some parties including the plaintiff No.1's deceased father by name Domingos Caetano D'Souza but the name of purchasers were not mentioned in the Partition Deed. The learned District Judge with reference to the Partition Deed dated 30-11-1920 observed that some parts of the property "VITES" was orally given to some parties including the plaintiff No.1's deceased father by name Domingos Caetano D'Souza but the name of purchasers were not mentioned in the Partition Deed. The learned District Court noted that the law did not recognize any oral sale of immovable property and further observed that the plaintiffs had not stated as to from whom the property was purchased, and what was the consideration. As regards the land acquisition proceedings, the learned District Judge conceded that at the utmost they can show that the plaintiffs were in possession of the suit property but did not establish ownership rights and further noted that though there was no documentary evidence on record to show that the plaintiffs had planted various trees in the suit property and even if the bare statement in the plaint was taken into consideration along with the fact that the plaintiffs received the compensation amount in respect of the strip of land acquired by the Government from Chalta No.4-B, mere possession of the suit property without any title to the same was not sufficient to declare the plaintiffs as owners of the suit property. In other words, the learned trial Court appears to have concluded that the plaintiffs were in possession of the suit property, but that was without any title and because of absence of title, the plaintiffs would not be entitled for a declaration. 12. Shri. V. B. Nadkarni, learned Senior Counsel on behalf of the plaintiffs, submits that para 8 of the affidavit of the attorney of the plaintiffs was not read by the learned District Court. Learned Senior Counsel submits that the Commissioner found that there was a boundary wall on the northern side of the portion now claimed by the plaintiffs and there must have been some reason for the erection of the said boundary wall which the Government has not explained as to why there should be a wall in the middle of survey No.4-B of the Government. Learned Senior Counsel submits that the plaintiffs had clearly explained that the property "VITES" originally belonged to Joaquim Thomas Xavier do Rego, and in the Partition Deed executed on 9-7-1898 between his two wives, was allotted jointly to his widow D. Maria Rosalia de Souza Gonsalves e Rego, and subsequently by Partition Deed dated 30-11-1920 after the death of the said Maria Rosalia on 31-5-1914 and that of his daughter on 17-9-1918, the property "VITES" was allotted to one of her three sons, namely Joaquim Thomas Xavier do Rego and in the said Deed of Partition it was expressly acknowledged that some of the parts of the property "VITES" having registration No.5386 was originally sold to some parties including plaintiff No.1's deceased father Domingos Caetano D'Souza, and that they were in possession thereof. Learned Senior Counsel submits that the Partition Deed dated 30-11-1920 may not convey a title in favour of the deceased father of plaintiff No.1 but it certainly shows that the deceased father of plaintiff No.1 was one of the persons to whom the property was sold and was in possession of the same after having paid the price of it, though a sale deed was not executed. Learned Senior Counsel further submits that in "the old cadastral survey the property "VITES" was not recorded in the name of the Government but was recorded in the name of Maria Rosalia D'Souza, and the Government had not shown as to how the said property which was earlier recorded in the name of the said Maria Rosalia D'Souza came to be recorded in the new survey in the name of the Government and this inspite of the admissions of the defendants witness that the private property could become that of the Government only under one of the modes of transfer under the Transfer of Property Act or the Land Acquisition Act. In fact, the defendant's witness at one stage had deposed that the suit property was acquired by the Government and further stated that after verification he would be able to provide an answer but was unable to provide any answer. In fact, the defendant's witness at one stage had deposed that the suit property was acquired by the Government and further stated that after verification he would be able to provide an answer but was unable to provide any answer. Learned Senior Counsel further submits that the acquisition by award Exh.38 was of both Chalta No.4-B, part of which is disputed as well as 19-A which is admittedly in possession of the plaintiffs and the Government in case the property belonged to them would not have paid compensation to the plaintiffs and not only that subsequently agree for enhancement. Learned Senior Counsel submits that the fact that the plaintiffs received compensation in respect of the disputed property shows that they were not only in possession of the same but were also the owners as the Government would not have paid compensation to the plaintiffs in case the disputed property was owned by the Government. Learned Senior Counsel submits that the defendants were directed to produce the acquisition plan but failed to produce the same, and as such, it is a fit case to draw an adverse inference against the Government for non production of the acquisition plan. Learned Senior Counsel submits that the evidence produced by the plaintiffs coupled with the documents produced by them was more than sufficient to conclude that it is the plaintiffs who were in possession of the disputed portion and relying on the decision in the case of Chief Conservator of Forests Vs. Collector and others ( AIR 2003 SC 1805 ) has submitted that possession of property is prima facie proof of ownership. In this case, the Apex Court has held that Section 110 embodies the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership. The presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title. 13. On the other hand, Shri. G. Shirodkar, learned Government Advocate submits that the notification issued under Section 6 in relation to the award-Exh.38 also shows that 254 sq. meters of one Ramnath Silimkhan were acquired, and the plaintiffs have not provided any explanation as to whether the property of Ramnath Silimkhan was also included in the property claimed by the plaintiffs for which the plaintiffs were paid compensation. meters of one Ramnath Silimkhan were acquired, and the plaintiffs have not provided any explanation as to whether the property of Ramnath Silimkhan was also included in the property claimed by the plaintiffs for which the plaintiffs were paid compensation. Learned Government Advocate further submits that the plaintiffs did not examine any witnesses in support of their case, and, therefore this is a fit case to draw adverse inference against the plaintiffs, and in this context, learned Government Advocate has placed reliance on Vidhyadhar Vs. Mankikrao and another ( AIR 1999 SC 1441 ) wherein it is stated that where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. Learned Government Advocate has next submitted that the plaintiffs evidence which is based on the evidence of plaintiffs attorney needs to be discarded and to support this submission, Shri. Shirodkar has placed reliance on the case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others ( (2005)2 SCC 217 : [2004(5) ALL MR (S.C.) 396]) wherein the Apex Court has approved the view that a power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party, in the capacity of that party. The Apex Court has further held that if the plaintiff is unable to appear in the Court, a commission for recording his evidence may be issued under the relevant provisions of C.P.C.. Learned Government Advocate has further submitted that in case the plaintiff no. 1 was unable to depose, the plaintiffs could have examined the other plaintiffs. Learned Government Advocate further submits that plaintiffs attorney was an interested witness because the attorney had entered into a development agreement in respect of the suit property, with the plaintiffs. Learned Government Advocate has further submitted that in case the plaintiff no. 1 was unable to depose, the plaintiffs could have examined the other plaintiffs. Learned Government Advocate further submits that plaintiffs attorney was an interested witness because the attorney had entered into a development agreement in respect of the suit property, with the plaintiffs. Shri. Shirodkar submits that the burden was entirely on the plaintiffs to show that they were the owners of the suit property and none of the documents produced by the plaintiffs, namely the cadastral survey plan, the deed of partition or the award of the L.A.O. or the District Court can help the plaintiffs to establish the title to the suit property. Learned Government Advocate then submits that since Chalta No.4-B has been recorded in the name of the defendant and therefore there is a presumption that the defendant-Government is the occupant in possession of the same. 14. Having considered the submissions made by the learned Counsel on behalf of the parties, I am of the view that the defendant can derive no benefit from the decisions in the case of Vidhyadhar Vs. Mankikrao and another (supra) as well as Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others (supra) for the case of the plaintiffs much depends on circumstances found to exist and the documents produced by the plaintiffs in support of their case of possession of the disputed property. Initially, the plaintiff No.1 was examined and partly cross-examined, and by consent of parties her evidence was retained and then her attorney was allowed to be examined. Presumably, other plaintiffs were not examined as they were non-residents, as the cause title itself shows. 15. Admittedly, the property under cadastral survey No.1046 was shown on survey record prepared in the year 1904-1905 in the name of Maria Rosalia de Souza Gonsalves e Rego and not the Government. The Government has not explained as to how a property which was recorded as a private property in the name of Maria Rosalia de Souza Gonsalves e Rego came to belong to the Government or came in their possession without any acquisition or transfer of title or possession. On the contrary, the plaintiffs had explained, and there was no serious cross-examination on that, that the property "VITES" originally belonged to Mr. On the contrary, the plaintiffs had explained, and there was no serious cross-examination on that, that the property "VITES" originally belonged to Mr. Joaquim T. X. do Rego and in the Partition Deed executed on 9-7-1898 between his two wives, was jointly allotted to his widow D. Maria Rosalia de Souza Gonsalves e Rego and her children and that subsequently under a Partition Deed executed on 30-11-1920 after the death of the said Maria Rosalia on 31-5-1914 and that of her daughter Maria Felicidade on 17-9-1918, the property "VITES" was allotted to one of her three sons, namely Joaquim Thomas Xavier do Rego, and in the Partition Deed dated 30-11-1920, it was expressly acknowledged that some parts of the property "VITES" registered under No.5386 was orally sold to some parties including plaintiff No.1's father Domingos Caetano D'Souza, and that they were in possession thereof. 16. This Deed of Partition dated 30-11-1920 would show that the father of deceased plaintiff No. 1 was in possession of the property. "VITES" having registration No.5386 which now has been identified by the Commissioner with a boundary wall on the northern side and regarding which there is no explanation whatsoever from the Government as to why there should be a boundary wall dividing their property into two halves in case they were in possession of the whole of Chalta No.4-B. The plaintiffs had produced the award of the Land Acquisition Officer as well as that of the reference Court and had clearly stated that a strip of land of Chalta No.19-A as well as a strip of Chalta No.4-B was acquired for the widening of the road, and compensation for the same was paid to plaintiff No.1 in respect of both the strips. The only answer of the Government to this, was that they were not aware of the same inspite of having been a party to the said proceedings. In case the strip of Chalta No.4-B belonged to the Government, the Government would not have paid any compensation to the plaintiffs. This again, shows that it is the plaintiffs who were in possession of that part of the property which has now been identified by the Commissioner and which formed part of Chalta No.4-B. There was no cross-examination at all as to from which portion 250 sq. This again, shows that it is the plaintiffs who were in possession of that part of the property which has now been identified by the Commissioner and which formed part of Chalta No.4-B. There was no cross-examination at all as to from which portion 250 sq. meters of Ramnath Silimkhan were acquired and the plan prepared by the Commissioner shows that the said Silimkhan's property is beyond the property of cadastral survey No. 1046, and, therefore, the fact that some portion of the said Silimkhan was acquired for the purpose of widening of the said road does not help the case of the Defendant in any manner. The plaintiffs had consistently stated that strips of both Chalta Nos.4-B which is disputed and Chalta No. 19-A of which the plaintiffs are admittedly in possession were acquired by the Government for the widening of the said road, and all that the Defendants could say in their written statement was that they were not aware that the compensation for the same was paid to the plaintiffs. 17. The fact that cadastral survey No. 1046 was recorded in the name of Maria Rosalia de Souza Gonsalves e Rego and not in the name of the Government in 1904-1905, the fact that a part of the disputed property as well as the property under Chalta No.19-A was acquired by the Government, and the plaintiffs were paid the compensation, the fact of the existence of the wall which according to the Commissioner separates the property of the Government and the property claimed by the plaintiffs, the Partition Deed which recognized that the father of plaintiff No.1 amongst others, to be in possession coupled with the averments in the plaint that the plaintiffs had planted great number of trees and were enjoying the same without any specific denial that the Defendants were enjoying the said trees would tend to show that it is the plaintiffs who were always in possession of the disputed property as identified by the Commissioner as part of the property "VITES" which was recorded in the name of the said Maria Rosalia de Souza Gonsalves e Rego. 18. 18. The Defendant did not at all explain as to how a property which under the old survey was recorded in the name of a private party under cadastral survey came to be recorded in the new survey in the name of the Government without there having been any acquisition or transfer of the property in favour of the Government. Admittedly, it is not the case of the Government that a notice was issued to any of the plaintiffs at the time of preparation of new survey, and the Government has relied only on public notice issued by the City Survey Inquiry Officer. Therefore, in my view, the documents produced by the plaintiffs and the circumstances proved would show that the plaintiffs are in possession of the property "VITES" having cadastral survey No. 1046 as identified by the Commissioner on the plan prepared by him, and in any event the documents produced by the plaintiffs would displace the presumption which would arise from the fact that the entire Chalta No.4-B of P.T. Sheet No.85 was surveyed in the name of the Government. Peaceful settled possession, is itself evidence of title, in the absence of proof of better title is a principle which has been laid down by the Privy Council, followed by the Division Bench of this Court in Fakirbhai Bhagwandas Vs. Maganlal Haribhai and another ( AIR 1951 Bom. 380 ) and which has been accepted by the Apex Court by a Bench of three Judges in Rarne Gowda Vs. M. Varadappa Naidu (2004 AIR SCW 4205) and followed by this Court in another unreported Judgment in Second Appeal No.4 of 1995 in the case of Shripad D. Naik Vs. Devalaya of Goa Vital. In Chief Conservator of Forests Vs. Collector and others (supra) the Apex Court also referred to certain observations of that Court in Nair Service Society ( AIR 1968 SC 1165 ) as they are as follows :- "The possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when facts are known. When facts disclose no title, possession alone decides." 19. When facts disclose no title, possession alone decides." 19. As against the documentary evidence produced by the plaintiffs to support their case of possession, the Defendants had produced nothing except form D of the survey records which recorded Chalta No.4-B in the name of the Defendant and besides that no evidence of any other acts of possession was produced by the Defendant. In these circumstances, the learned trial Court ought to have answered Issue No.1 in favour of the plaintiffs and against the Defendant, which I hereby do. 20. As regards limitation, it appears that the City Survey Officer had confirmed the survey in the name of the Defendant by Order dated 9-4-1979 but the Defendant was unable to bring anything on record to show that the plaintiffs were aware of the said Order when it was made or at anytime thereafter. There is no dispute that the plaintiffs filed an application before the Deputy Collector under Section 14 of the Land Revenue Code on 5-10-1987 and that date must be attributed as the date of their knowledge of wrong survey. The application came to be dismissed as non maintainable by Order dated 20-9-1993, and application for review of the same came to be dismissed on 12-4-1995 and finally the Writ Petition came to be dismissed on 7-8-1996. The suit was filed on 27-11-1998. 21. The learned District Judge has held that as on 20-9-1993 the plaintiffs were aware that a part of property under Chalta No.4B was recorded in the name of the Government. The learned District Judge has computed three years from that date and has held that the plaintiffs could have filed the suit within three years from that date. The learned District Court came to the conclusion that the limitation for filing of the Civil Suit for declaration of ownership was three years from the date of cause of action or from the date of knowledge about the recording of name of the Government in the survey records and not from the date when this Court had dismissed the Writ Petition. 22. The issue of limitation was not pressed on behalf of the Government. Nonetheless, the learned District Judge proceeded to decide the same in view of mandate of Section 3 of the Limitation Act, 1963. 23. 22. The issue of limitation was not pressed on behalf of the Government. Nonetheless, the learned District Judge proceeded to decide the same in view of mandate of Section 3 of the Limitation Act, 1963. 23. Learned Senior Counsel on behalf of the plaintiffs on this aspect of the case has submitted that the period of three years has to be computed from 7-8-1996 when the Writ Petition was dismissed and has submitted that the suit which was filed on 27-11-1998 was well within time. Learned Senior Counsel has submitted that Section 14(4) of the Land Revenue Code is akin Article 100 of the Limitation Act. 1963. Learned Counsel has submitted that one year period prescribed either under Section 14(4) or Article 100 is not applicable to the facts of the case, in as much as, the Order dated 20-9-1993 was not an order given on merits of the claim but on the ground that the application was not maintainable. Learned Senior Counsel has placed reliance on Ajudh Raj and others Vs. Moti ( (1991)3 SCC 136 ) wherein the Apex Court has stated that the principle for deciding the question of limitation in a suit filed after an adverse order under a special Act is well settled. If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted and if no particular article of the Limitation Act is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. Therefore, in a suit for title to an immovable property which has been the subject matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding further. On the other hand, if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eye of law and it is not necessary to set it aside; and such a suit will be covered by Article 65. 24. In the case of Ajudh Raj Vs. Moti (supra) reference was made to Sheo Lal and others Vs. Sultan and others ( (1969)2 SCC 883 ). 24. In the case of Ajudh Raj Vs. Moti (supra) reference was made to Sheo Lal and others Vs. Sultan and others ( (1969)2 SCC 883 ). In that case, the plaintiffs had applied on 23-5- 1951 under Section 4 of Redemption of Mortages (Punjab) Act, 1913 for redemption of the mortgage in favour of Meda. That application was rejected by the Assistant Collector on 29-6-1951 on the ground that it could not be tried summarily as it raised complicated questions of fact and law. Thereafter, the plaintiffs instituted a suit on 20-8-1960 in the Civil Court for redemption of the mortgage. The suit which was filed after about nine years was resisted, inter alia, on the ground that the period of limitation prescribed by Article 14 of the Indian Limitation Act. 1908 had expired, and the trial Court had dismissed the suit for redemption. Article 14 of the Act of 1908 corresponds to Article 100 of Act of 1963. The trial Court had dismissed the suit in favour of Meda. The District Court had allowed the appeal and ordered redemption. The decree passed by the District Court was confirmed in Second Appeal and the Special Leave Petition came to be dismissed by the Apex Court observing that "we are unable to agree with the appellant's contention that since no suit was filed within one year of the date on which the application of the plaintiffs was rejected by the Assistant Collector, the order dismissing the application was conclusive, and the suit for redemption by the plaintiffs was not maintainable". The Apex Court further observed that Section 9(1)(a) of the Redemption of Mortgages (Punjab) Act, 1913 authorizes the Collector to dismiss the petition for reasons to be recorded, where the mortgages raises objection on the ground other than the amount of deposit or if the mortgagor is not willing to pay the sum demanded by the mortgagee. There is no evidence that the mortgagor declined to pay the sum demanded by the mortgagee. Again the Assistant Collector did not pass an order dismissing the petition for any reasons recorded by him. He merely ordered that the case raised complicated questions of fact and law which could not he tried in a summary proceeding. Such an order, in our judgment, does not fall within the terms of Section 9 of Act 2 of 1913. Again the Assistant Collector did not pass an order dismissing the petition for any reasons recorded by him. He merely ordered that the case raised complicated questions of fact and law which could not he tried in a summary proceeding. Such an order, in our judgment, does not fall within the terms of Section 9 of Act 2 of 1913. Even if by the order the petition was dismissed, not the form of the order, but its substance will determine the application of the period of limitation prescribed by Article 14 the Limitation Act. An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption, for it raises no cloud on the title of the mortgagor arising out of the mortgage. Such an order is not one which is required to be set aside. An order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside. The order of the Assistant Collector merely declared the rights of the plaintiff under the common law. It did not bar the claim to relief for redemption in a civil suit, and on that account it was not an order which was required to be set aside. The Court ultimately held that when the Collector decides nothing against the mortgagor and directs that the matter be settled in a Civil Suit, the Collector's decision does not stand in the way of the suit for redemption. 25. In the case at hand, the plaintiffs application dated 5-10-1987 was dismissed by the Collector on 20-9-1993 as not maintainable. Thereafter, a review was dismissed. Then the plaintiffs filed a Writ Petition and soon after the Writ Petition filed a suit for declaration and consequential relief as already stated. The case at hand is squarely covered by the ratio of the case of Sheo Lal and others Vs. Sultan and others (supra) and, therefore in the facts of the case, it could not be said that the suit of the plaintiffs for declaration was time barred. The learned trial Court ought to have answered Issue No.2 against the Defendant. 26. Consequently, this appeal succeeds. Sultan and others (supra) and, therefore in the facts of the case, it could not be said that the suit of the plaintiffs for declaration was time barred. The learned trial Court ought to have answered Issue No.2 against the Defendant. 26. Consequently, this appeal succeeds. The impugned Judgment of the District Court is hereby set aside and the suit of the plaintiffs is decreed in terms of prayer (A) with no order as to costs. Appeal allowed.