THAKORE SHRI HIMATSINH BHUPATSINH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this Second Appeal the following three questions have been framed as substantial questions of law:

(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plaintiff s father filed Regular Civil Suit 57/54 challenging the decision of the Mamlatdar but said suit was later on withdrawn on 4-11-1965 with a permission to file a father suit on the same cause of action. The fresh suit was filed after about 5 years and was registered as Civil Suit No. 7/69 and that was also withdrawn on 10/12/1969 with a permission to file fresh suit.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. 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.