PARDI NAGAR PANCHAYAT Vs. KHANDUBHAI DAHYABHAI DESAI

JUDGEMENT

(1.) The appellant herein is the original defendant and the respondent is the original plaintiff. The suit out of which this Second Appeal arises was filed by the plaintiff in the Court of the learned Civil Judge (Junior Division) Pardi on December 10 1970 The plaintiff had filed the suit for a declaration that he is the owner of the land bearing Gamthan No. 459 situated within the local limits of defendant Nagar Panchayat namely the Pardi Nagar Panchayat and he is also the owner of the well in the said plot of land and the Bhinda trees grown on the said land. lie sought for a permanent injunction restraining the defendant Nagar Panchayat from disturbing him either directly or through some one else; in his possession of the suit lands it is the case of the plaintiff as set out in bearing Survey No 100 admeasuring 1 acre and 8 gunthas. This Is an agricultural plot of land. Just touching this Survey No. 100 and to the East of the hold there is a small plot admeasuring 2 Gunthas. and 30 square yards. On this plot there was a well and two trees known as Bhinda trees. According to the plaintiff he had purchased field bearing Survey No. 100 and the small plot of land by a registered sale deed dated April 17 1919 from one Banubibi and her husband Bannumiya. Prior to. the sale deed the vendors and their ancestors were ill possession of the land. The well had been built by the father of Banubibi and according to the plaintiff since the date of theE purchase he was in possession of the land and the well and he; had planted the Bhinda trees with the aid of water drawn from the well and he was also using the well water for irrigating the land of Survey No. 100. On December 7 1962 the plaintiff cut down one of the two trees on the land and on December 8 1962 the servants of the Nagar Panchayat alleged that he had encroached upon the land belonging to the Panchayat and thus there was a dispute between the Panchayat on the one hand and the plaintiff on the other as to who was the owner of the small plot of land admeasuring 2 Gunthas and 30 square yards. Under the provisions of sec. 101 of the Gujarat Panchayats Act 1961 the matter was referred to the Collector as the Collector was the competent authority to decide that question. The Assistant Collector Bulsar who is also Collector for the purposes of sec. 101 held an inquiry and ultimately decided in favour of the panchayat. This order was passed by the Assistant Collector on October 20 1969 By a letter dated November 12 1969 the order of the Assistant Collector was communicated to the plaintiff and the communication actually reached the plaintiff on November 13 1969 On November 18. 1969 the plaintiff applied for certified copies inter alia of the order passed by the Assistant Collector and on January 30 1970 the certified copies were received by the plaintiff; Ultimately the plaintiff filed the suit on December 10 1970 No notice prior to the institution of the suit statutory or otherwise appears to have been given by the plaintiff.

(2.) One of the contentions raised by the Nagar Panchayat in the written statement was that the suit was barred by limitation and that led to issue No. 4. The learned trial Court Judge held that the suit was barred by limitation. The other issues on merits were also decided by the learned trial Court Judge. The matter was carried in appeal to the District Collector Bulsar at Navsari and the learned District Judge allowed the appeal and set aside the judgment and decree of the trial Court. He held that the suit was not barred by limitation. Thereafter this Second Appeal has been filed by the Pardi Nagar Panchayat. the original defendant against the judgment and decree of the learned District Judge. In my opinion the suit was clearly barred by limitation and hence it is not necessary for me to go into the other questions of merits so far as the claim of the plaintiff is concerned.

(3.) Under sec. 101 of the Gujarat Panchayats Act in any revenue village where any property or any right in or over any property is claimed by or on behalf of the panchayat or by any person against the panchayat it shall be lawful for the Collector after formal enquiry of which due notice has been given. to pass an order deciding the claim. Under sub-sec (3) (a) of sec. 101 the powers conferred by the section on the Collector may he exercised also by an Assistant or Deputy Collector or by a Survey Officer or such other officer appointed under the Bombay Land Revenue Code. Sub-sec. (2) of sec. 101 is the material provision in this case and it is in these terms;