Judgment :- 1. Admit. 2. Heard finally with the consent of learned Counsel for the parties. 3. This appeal filed under Section 100 of the Code of Civil Procedure takes exception to the judgment dated 31-10-2013 passed by the first appellate Court dismissing the appeal preferred by the present appellant and confirming the decree passed by the trial Court on 21-12-2010 directing the present appellant to hand over vacant possession of encroached portion of land. 4. The relevant facts are that the respondent – original plaintiff claims to have purchased various pieces of lands including land bearing Survey No.34/2003 vide registered sale deed dated 23-12-1986. 5. It is the case of the respondent that various persons including the present appellant had encroached upon portions of the lands purchased by the respondent. The respondent accordingly got said lands measured on 21-2-1987 and it was noticed that in so far as the present appellant is concerned, it had encroached land to the extent of 0.05.58 hectares in Khasra No.34/03. The appellant had constructed a primary school building in said area and the encroached portion was part of said school. On 7-8-1987, the respondent issued a notice to the appellant as well as other private persons seeking possession of the encroached portion. As said notice was not complied, the respondent filed Regular Civil Suit No.625/1988 on 25-3-1988 seeking possession of the encroached portion after removal of the same. 6. The present appellant contested the aforesaid suit on the ground that the respondent was not the owner of the property in question. According to the appellant, the Gram Panchayat as well as erstwhile owner of the suit land had not been joined as a party. Another plea taken was that no statutory notice under Section 280(1) of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 (for short the Act of 1961) was issued by the respondent before filing the suit. It was also pleaded that the cause of action having arisen between March 1986 to July, 1987, the suit ought to have been filed within three months from the said date of cause of action and the same not having been done, the suit was barred by limitation. On 4-11-1996, the trial Court dismissed aforesaid suit. It was also pleaded that the cause of action having arisen between March 1986 to July, 1987, the suit ought to have been filed within three months from the said date of cause of action and the same not having been done, the suit was barred by limitation. On 4-11-1996, the trial Court dismissed aforesaid suit. However, in the appeal preferred by the present respondent the first appellate Court on 6-10-2004 allowed the said appeal and remanded the suit for fresh trial in accordance with law. 7. In support of the claim as made in the suit, the respondent examined himself at Exhibit-53 and the Taluqa Inspector of land records at Exhibit-77. The present appellant examined the Block Education Officer, a Member of the Gram Panchayat and another witness to substantiate the defence as taken. The trial Court after remand of the proceedings recorded a finding that the respondent was the owner of the land in question. It was further held that as per the deposition of PW2 who had measured the lands as per map at Exhibit-78, it was proved that the appellant had committed encroachment to the extent of 0.05.58 hectares. It noted that the appellant had not cross examined the said witness. It further found that the appellant did not lead any evidence to prove the period when the school was constructed or that the school building was constructed on the land which it alleged had been gifted to the Zilla Parishad. As regards issuance of notice under Section 280(1) of the Act of 1961, the trial Court held that as the appellant had committed encroachment on the land of the respondent, said act of encroachment could not be said to be an act done in pursuance of the provisions of the Act of 1961. It accordingly decreed the suit and directed the appellant to hand over vacant possession of the encroached portion to the extent of 0.05.58 Hectares from Survey No.34/2003. 8. Being aggrieved, the appellant challenged the aforesaid decree. The first appellate Court after re-appreciating the evidence found that the encroachment had been duly proved as per the map at Exhibit-78. It further affirmed the finding that the respondent was the owner of the suit land and that the appellant had encroached upon a portion thereof. 8. Being aggrieved, the appellant challenged the aforesaid decree. The first appellate Court after re-appreciating the evidence found that the encroachment had been duly proved as per the map at Exhibit-78. It further affirmed the finding that the respondent was the owner of the suit land and that the appellant had encroached upon a portion thereof. It further held that the act of encroachment was not an act done under provisions of the Act of 1961 and hence, issuance of notice under Section 280 (1) of the Act of 1961 was not necessary. It, therefore, dismissed the appeal and affirmed the decree passed by the trial Court. Hence, the present second appeal. 9. Shri M. M. Sudame, the learned Counsel appearing for the appellant submitted that both the Courts erred in decreeing the suit in favour of the respondent. It was submitted that the encroachment had not been duly proved by the respondent. It was submitted that the land in question had been gifted to the appellant and the gift was duly acted upon after which the appellant had constructed a school on said land. It was then submitted that no notice under Section 280 (1) of the Act of 1961 was issued by the respondent before filing of the suit. Even though a notice at Exhibit 66 came to be issued on 7-8-1987, the suit was filed on 25-3-1988 which was beyond the period of limitation prescribed by Section 280(1) of the Act of 1961. It was then submitted that it was the duty of the Zilla Parishad to impart education and to achieve said object it had constructed the school in question. Said act of constructing the school was an act done in pursuance of the Act of 1961 and hence, issuance of notice under Section 280(1) of the said Act of 1961 was necessary. He further submitted that the act of encroachment, if any, was an outcome of the activity of constructing the school that was done in good faith. In support of said submission, the learned Counsel relied upon the decisions of the Supreme Court in MatajogDobey v. H.C. Bhari, AIR 1956 SC 44 , The Trustees of Port of Bombay v. The Premier Automobiles Ltd. and another AIR 1974 Supreme Court 923, and V. M. Salgaocar and Bros. V. Board of Trustees of Port of Mormugao and another (2005) 4 Supreme Court Cases 613. V. Board of Trustees of Port of Mormugao and another (2005) 4 Supreme Court Cases 613. He then submitted that the donor who had gifted the land in question to the Zilla Parishad was governed by the Muslim Law and hence, an oral gift not requiring any registration was permissible for being executed. In this regard, he placed reliance upon decision of the Supreme Court in RasheedaKhatoon V. Ashiq Ali (2014) 10 Supreme Court Cases 459. He therefore submitted that both the Courts erred in decreeing the suit without considering the provisions of Section 280 (1) of the Act of 1961 in its proper perspective. 10. Shri S. P. Bhandarkar, the learned Counsel appearing for the respondent supported the impugned judgment. According to him, the appellant did not lead any cogent evidence regarding the exact location of the school and that the same was constructed on portion of the land that came to be gifted to the appellant as claimed. He further submitted that the encroachment in question had been duly proved and the Surveyor who had prepared the map at Exhibit-78 had not been cross-examined. He therefore submitted that in absence of these factual aspects, the appellant had failed to prove its defence and hence, there was no factual foundation for considering the question as urged by the appellant. He then submitted that the act of encroachment committed by the appellant could not be said to be “an act done or purported to have been done pursuant to the said Act”. According to him, any act done without any semblance of authority and in total disregard to law could not be termed to be an act that was done under the statute in question. He therefore submitted that no notice under provisions of Section 280 (1) of the Act of 1961 was required to be issued and, therefore, the findings recorded by both the Courts in that regard did not call for any interference. To support aforesaid submissions, the learned Counsel placed reliance upon the decision of the Division Bench in JalgaonBorough Municipality Vs. Khandesh Spinning and Weaving Mills Co. Ltd., AIR 1953 Bom. 204 . To support aforesaid submissions, the learned Counsel placed reliance upon the decision of the Division Bench in JalgaonBorough Municipality Vs. Khandesh Spinning and Weaving Mills Co. Ltd., AIR 1953 Bom. 204 . As regards execution of the gift deed, it was submitted that the portion of land alleged to have been gifted not having been specifically proved, it was not open for the appellant to contend that the construction was erected on the very same land that was alleged to be gifted. The learned Counsel therefore submitted that no substantial question of law arose in the second appeal and the same was therefore liable to be dismissed. 11. The following substantial questions of law arise in the second appeal. (i) Whether the suit as filed is within limitation as prescribed by Section 280(1) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961? (ii) Whether both the Courts were justified in holding that as the appellant had committed encroachment, there was no necessity of issuing notice under Section 280 (1) of the said Act? 12. The findings of fact recorded by both the Courts indicate that the respondent had proved that the appellant had committed encroachment to the extent of 0.05.58 Hectares at Khasra No.34/3. According to the appellant while constructing the primary school building aforesaid portion of land came to be utilized in excess resulting in the said encroachment. As per the appellant, while constructing the primary school building which was an act that was purported to have been done in pursuance of the provisions of the Act of 1961, if the same resulted in any encroachment, issuance of notice under Section 280 (1) of the Act of 1961 was necessary. On the other hand, according to the respondent, the act of encroachment on the part of the appellant could not be justified on account of an act purported to have been done under the provisions of the Act of 1961 and hence, there was no necessity whatsoever of issuing any notice under Section 280 (1) of the Act of 1961. 13. For considering aforesaid aspect, it would be first necessary to consider the pleadings of the respective parties in that regard. In para 4 of the plaint, the respondent has pleaded that the act of encroachment by the appellant was an illegal act and that it had no right, title or interest in the land to undertake construction. 13. For considering aforesaid aspect, it would be first necessary to consider the pleadings of the respective parties in that regard. In para 4 of the plaint, the respondent has pleaded that the act of encroachment by the appellant was an illegal act and that it had no right, title or interest in the land to undertake construction. It was further pleaded that the appellant had no right to continue to occupy the encroached portion. In para 6 of the plaint, it has been specifically pleaded that in view of the fact of encroachment, there was no legal duty or obligation upon the respondent to serve any notice on the appellant and that the appellant was also not entitled for such notice. It was further pleaded that such notice is required to be issued only if the act of encroachment was an act done or purported to be done in pursuance of execution of its duties under the Act of 1961. In reply to the case as pleaded in para 4 of the plaint, it was denied by the appellant that any encroachment had been committed by it over the land of the respondent. In reply to para 6 of the plaint, it was pleaded that the suit was barred by limitation. A preliminary objection was also raised in the written statement that the suit was not maintainable as the plaintiff did not issue any statutory notice as contemplated by Section 280 (1) of the Act of 1961. 14. Both parties led evidence in support of their respective stands. The encroachment was accordingly held to be duly proved. The construction of the school building on the land that was donated to the appellant by one Isabhai was held to be not proved. Both the Courts further held that the act of encroachment could not be said to be an act done in pursuance of the provisions of Act of 1961. 15. Section 280(1) of the Act of 1961 reads thus: 280(1). Both the Courts further held that the act of encroachment could not be said to be an act done in pursuance of the provisions of Act of 1961. 15. Section 280(1) of the Act of 1961 reads thus: 280(1). Limitation of suits, etc.: (1) No suit shall be commenced against any Zilla Parishad or against any officer or servant of, or working under a Zilla Parishad or any person acting under the orders of a Zilla Parishad or Panchayat Samiti for anything done, or purporting to have been done, in pursuance of this Act, without giving to such Zilla Parishad officer, servant, or person one month's previous notice in writing of the intended suit nor after three months from the date of the act complained of. The notice shall state the cause of action, the nature of the relief sought, the amount of compensation claimed and the name of place of abode of the person who intends to bring the action.” According to the respondent it was not necessary for him to issue any notice under Section 280 (1) of the Act of 1961 inasmuch as the act of encroachment committed by the appellant was an illegal act which was not done or purported to have been done in pursuance of the Act of 1961. As the appellant has sought compliance with provisions of the Act of 1961, it was necessary for it to have first pleaded that while undertaking construction of the primary school building and after exercise of due care and caution, part of the land owned by the respondent came to be inadvertently encroached. It was then also necessary for the appellant to have led evidence to prove such case. The burden to do so was on the appellant as it sought to defend the act of encroachment as an act done or purported to be done in pursuance of the Act of 1961. However, the pleadings of the appellant in the written statement clearly indicate that neither was any such case specifically pleaded or set up to justify its action of encroachment having been committed as a result of an act having been done or purported to have been done under the Act of 1961. There being no pleadings whatsoever in that regard, the question of leading evidence regarding said stand does not arise. 16. There being no pleadings whatsoever in that regard, the question of leading evidence regarding said stand does not arise. 16. In State of Gujarat v. Kansara Manilal Bhikhalal AIR 1964 SC 1893 while considering the manner in which protection for anything done or intended to be done under the concerned statute can be claimed by a party, it was observed in para 9 as under: “9............................................................................. .................................................................. But the critical words are “any thing x x x done or intended to be done” under the Act. The protection conferred can only be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to comply with any of its provisions. It cannot confer immunity in respect of actions which are not done under the Act but are done contrary to it. Even assuming that an act includes an omission as stated in the General Clauses Act, the omission also must be one which is enjoined by the Act. It is not sufficient to say that the act was honest. That would bring it only within the words “good faith”. It is necessary further to establish that what is complained of is something which the Act requires should be done or should be omitted to be done. There must be a compliance or an intended compliance with a provision of the Act, before the protection can be claimed. The section cannot cover a case of a breach or an intended breach of the Act however honest the conduct otherwise.” From the aforesaid, it is clear that when a stand that a particular act was done or purported to have been done under authority granted by the concerned statute is taken, same is required to be specifically pleaded and proved. In the present case, when such stand is sought to be set up by way of defence and the respondent is sought to be non-suited on the technical plea regarding failure to issue a statutory notice, burden was on the appellant to plead and prove that the act committed by it resulting in encroachment was the consequence of an act that was done or purported to have been done in pursuance of the provisions of the Act of 1961. The same not having been done, the appellant cannot be permitted to rely upon such plea without any foundational basis. 17. In MatajogDobey (supra) that was relied upon by the learned Counsel for the appellant, it has been held that there has to be a reasonable connection between the act and the discharge of official duty. The act in question must bear such relation to the duty. Similarly, in Trustees of Port of Bombay (supra), it was observed that while considering whether the act is one done or purported to be done under provisions of the statute, the conduct of the public body has to be viewed as a whole including omissions that could be attributed to the exercise of office. If aforesaid is the true import of aforesaid decisions, then it is obvious clear that for claiming benefit of such provisions of the statute, a clear case in that regard has not only to be specifically pleaded but is also required to be proved. The same is, however, conspicuously absent in the present case. 18. The decision in V. M. Salgaocar and Bros.(supra) is with regard to the validity of prescribing a shorter period of limitation in a special statute than one prescribed under the Limitation Act, 1963. Said decision is not very relevant for considering the substantial questions as framed. Similarly, the ratio of the decision in RasheedaKhaton (Dead) through Legal Representatives (supra) cannot in any manner further the case of the appellant considering the findings as recorded. 19. In JalgaonBorough Municipality (supra), the Division Bench while considering the nature of any legal act and whether the same would fall within the category of an act done or purported to have been done in pursuance of the concerned statute observed thus: “The acts which would fall within the category of those “done or purporting to have been done in pursuance of the Act” could only be those which were done under a vestige or semblance of authority, or with some show of a right. If an act was outrageous and extraordinary or could not be supported at all, not having been done with a vestige or semblance of authority, or some sort of a right invested in the party doing that act, it would certainly not be an act which is “done or purports to have been done in pursuance of the Act”. If an act was outrageous and extraordinary or could not be supported at all, not having been done with a vestige or semblance of authority, or some sort of a right invested in the party doing that act, it would certainly not be an act which is “done or purports to have been done in pursuance of the Act”. The distinction between ultra vires and illegal acts, on the one hand, and those purporting to be done in pursuance of the Act, on the other, is quite well known. (Vide Secretary of State v. Major Hughes, AIR 1914 Bom 33 at p. 35(E), Corbett v. South Eastern and Chatham Railways Committee, (1906) 2 ch 12 (F); Parvateppa v. Hubli Municipality, AIR 1937 Bom 491 (B); Koti Reddi v. Subbiah, AIR 1918 Mad 62 (G) and Municipal Borough Dhulia v. Mahomed Isak, AIR 1936 Bom 43 at p. 45(H). The distinction and really between ultra vires and illegal acts, on the one hand, and wrongful acts, on the other – wrongful in the sense that they purport to have been done in pursuance of the Act; they are intended to seem to have been done in pursuance of the Act and are done with a vestige or semblance of authority, or sort of a right invested in the party doing those acts.” The aforesaid observations fully support the stand of the respondent. 20. From aforesaid discussion, it is clear that the appellant failed to plead and prove that while constructing the primary school building adjacent to Khasra No.34/3 which was an act done under provisions of the Act of 1961, the same resulted in encroachment to the extent of 0.05.58 hectares. As it has failed in proving so, the resultant act of encroachment cannot be saved on the ground that it was an act done by the Zilla Parishad in pursuance of the provisions of the Act of 1961. It was necessary for the Zilla Parishad as a public body to have clearly pleaded and proved the manner in which such activity was undertaken in a bonafide manner which ultimately resulted in encroachment having been committed. It was necessary for the Zilla Parishad as a public body to have clearly pleaded and proved the manner in which such activity was undertaken in a bonafide manner which ultimately resulted in encroachment having been committed. The same not having been done, substantial question of law No.(ii) as framed is answered by holding that both the Courts were justified in holding that as the appellant had committed encroachment, it was not necessary to issue notice under Section 280(1) of the said Act of 1961. In view of said answer to substantial question of law No.(ii), the first substantial question of law as framed is answered by holding that as issuance of notice under Section 280(1) of the Act of 1961 was not necessary in the facts of the present case, there was no requirement of filing the suit within limitation as prescribed by Section 280(1) of the Act of 1961. Said substantial question of law stands answered accordingly. 21. In view of aforesaid, there is no case made out to interfere with the impugned judgment. The Second Appeal stands dismissed, however, with no order as to costs.