RUKMANIBAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) [His Lordship after narrating the facts proceeded.] Mr. Shah who appears for the plaintiff has challenged the order of dismissal of the plaintiff's suit by the Trial Court and the learned Assistant Judge. His first contention was that the finding by the courts below that the suit was barred both under section 11 of the Bombay Revenue Jurisdiction Act and under section 37(3) of the Bombay Land Revenue Code was erroneous and was not justified in law. He submitted that the suit filed by the plaintiff was in fact in time as it was filed on the 22nd of June 1953 i. e. within one year from the 28/04/1952 that being the date of the order of dismissal of the plaintiffs appeal by the Bombay Revenue Tribunal which is the final appellate authority That contention in my view cannot be sustained.

(2.) The suit in substance was to set aside the order passed by the Mamlatdar and subsequently confirmed by the superior revenue authorities. Though in the plaint it was said that the suit was for a declaration that the land in question was of the plaintiffs ownership and there was a prayer for a perpetual injunction restraining the State of Bombay from interfering was his possession that declaration was sought on the footing that the order passed by the Mamlatdar and subsequently consumed by the other revenue authorities was illegal and should be set aside. Article 14 of the Limitation Act would therefore seem to apply. Under that Article the period of Limitation prescribed is one year from the date of the order sought to be set side. If Article 14 of the Limitation Act were to apply then the question would be which is the order from the date of which the limitation for one year is to commence under Article 14. Section 37(3) of the Bombay Land Revenue Code which is a special statute laying down the period of limitation in respect of such orders provides that any suit instituted in any Civil Court after the expiration of one year from the date of any order passed under sub-section (1) or sub-section (2) or if one or more appeals have been filed 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 section 204 shall be dismissed if the suit is brought to set aside such an order or if the relief claimed is inconsistent with such an order provided that in the case of an order under sub-section (2) the plaintiff has had due notice of such order. It is therefore immaterial whether the plaintiff in the suit has claimed declaration as regards his ownership of the land in question or whether the suit is for setting aside the order passed by the Mamlatdar. So long as the relief claimed in the suit is in consistent with the order passed by the Mamlatdar sub-section (3) of section 37 of the Land Revenue Code would apply and therefore the period prescribed by this sub-section viz. one year from the date of the order of the final appellate authority must apply to such a suit. If therefore a suit is instituted in a Civil Court after the expiry of one year from the date of the order of such final appellate authority such a suit is liable to be dismissed under provisions of sec. 37(3). It is not disputed that the final appellate authority as contemplated in section 37(3) is the Revenue Tribunal. Under sections 203 and 204 of the Land Revenue Code an appeal from an order of a Mamlatdar first lies to the Prant Officer and thereafter to the Collector and then to the Revenue Tribunal. As I have stated the plaintiff filed an appeal before the Prant Officer and having failed there he straightway filed an appeal before the Revenue Tribunal who rejected the same on the ground that the plaintiff ought to have preferred an appeal before the Collector before he launched his appeal before the Revenue Tribunal. Since no appeal can lie to the Tribunal directly from the order of a Prant Officer there was no valid appeal before the Revenue Tribunal within the meaning of the Bombay Land Revenue Code. It was therefore rightly rejected by the Tribunal. That being the position and there being no valid appeal against the order of the Prant Officer the final order was the one passed by the Prant Officer dismissing the Plaintiffs appeal and confirming the order passed by the Mamlatdar. That was dated the 27th of March 1952. The present suit having been instituted on the 2 2/06/1953 it was undoubtedly filed after more than a year from the date of the order of the Prant Officer and therefore it was time barred under sub-section (3) of sec. 37 of the Code.

(3.) Section 11 of the Bombay Revenue Jurisdiction Act 1876 provides that no Civil Court shall entertain any suit against Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that previously to bringing his suit he had presented all such appeals allowed by the law for the time being in force as within the period of limitation allowed for bringing such a suit it was possible to present. It has been held on more than one occasion that the words act or omission of any Revenue Officer would include an order passed by the Mamlatdar or any other Revenue Officer under the provisions of the Land Revenue Code. Section 11 of this Act enjoins that all appeals that could be filed before the superior officers or tribunals within the limitation prescribed for the suit must be filed and if they are not filed the suit would be barred. Of course if the order of the Revenue Officer is ultra vires or invalid a plaintiff is not bound to appeal under section 203 of the Code and it would be open to him to bring a suit directly without filing any appeal. That is because such an order is a nullity and cannot give rise to any right whatsoever even a right of an appeal and therefore section 11 of the Revenue Jurisdiction Act would not apply in case of such an order. 3Jut then all incorrect orders are not necessarily ultra vires or invalid and in such case section 11 of the Revenue Jurisdiction Act would apply. There can be no doubt that the order passed by the Mamlatdar in the present case has been passed under the provisions of section 37(2) of the Code and though it was pleaded by the plaintiff in his plaint that the land in question belonged to him it was never his case either in the Trial Court or in the first appellate Court that the order passed by the Mamlatdar was ultra vires or invalid. Section 11 of the Revenue Jurisdiction Act therefore must apply to the present case.