DALLUMIYA LALMIYA MALEK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These two Letters Patent Appeals raise certain common questions of law and therefore they are disposed of by this common order. The two important questions of law which arise in there two appeals are:-

(2.) As regards the Letters Patent Appeal No. 6 of 1967 the inquiry before the Mamlatdar was as regards three plots A B C. Regarding plot B which was purchased by the plaintiffs as per Ex. 63 the question was conceded even by the State and therefore the inquiry had been only as regards plots A and C. The Mamlatdar held plot C as belonging to the Government while plot A was found to belong to the plaintiffs. Without any appeal by the States in the appeal of the plaintiffs the Prant Officer even set aside the finding as regards the plot A which was also held to be Government property. Therefore the plaintiffs filed a suit as regards both these plots. The trial Court upheld the plaintiffs claim as regards plot A and negatived the claim as regards plot C. The lower appellate Court also held that the plaintiffs had failed to establish their claim as regards plot C. The claim as regards plot A was disallowed by the lower appellate Court on the ground that the plaintiffs had not exhausted all the remedies as required under sec. 11 of the Bombay Revenue Jurisdiction Act 1876 and therefore the plaintiffs suit was dismissed. The learned Single Judge Raju J. however held that the plaintiffs have failed to exhaust their remedies and they having failed to so there was a bar to the plaintiffs suit in respect of Plot C. As regards plot A however the learned Single Judge held that the Prant Officer had no jurisdiction to modify the order of the Mamlatdar when there was no appeal against this order of the Mamlatdar by the State. Therefore the plaintiffs claim was decreed by the learned Single Judge in respect of the property plot A while the suit was dismissed as regards plot C. The plaintiffs have therefore filed the present appeal as regards the said plot C only.

(3.) Before considering these appeals on merits we would at the outset dispose of the aforesaid two important legal questions which are involved in these appeals. Sec. 37(2) of the Code provides that all public roads etc. and all lands wherever situated which are not the property of the individuals or of aggregate of persons legally capable of holding property and except in so far as any rights of such persons may be established in or over the same and except as may be otherwise provided by any law for the time being in force are hereby declared to be with all rights in or over the same or appertaining thereto the property of the Government and it shall be lawful for the Collector subject to the orders of the State Government to dispose of them in such manner as he may deem fit as or as may be authorised by general rules sanctioned by the Government concerned subject always to the rights of way and all other rights of the public or of individuals legally subsisting. Sec. 37(2) (3) and (4) then provide as under :-