PATEL JADAV TAPU Vs. SATVARA KESHA VALA

JUDGEMENT

(1.) The plaintiffs' Special Civil Suit No. 70 of 1970 having been dismissed by the Court of Civil Judge (S.D.) Jamnagar, they have filed this appeal against the judgment and decree passed in the case. The plaintiffs had filed the suit against the defendants for recovering possession of land bearing S. No. 457 of village Dhunvav.

(2.) The case of the plaintiffs is that the suit land was a Barkhali land and it belonged to Fatmabai Masjid. It was a Barkhalidar in respect of the said land. The said land was given by the Barkhalidar to plaintiff No.1 and deceased Premji Kurji for cultivation. After some time, they gave the same to defendant No.1 for cultivation under a lease deed dated 7-2-1951. It was for a period of ten years starting from S.Y. 2008, i.e. 13-10-51. The Saurashtra Barkhali Abolition Act, 1951 came into force from 1st September 1951 and the Barkhali tenure stood abolished by the said Act. Plaintiff No.1 and deceased Premji Kurji applied for occupancy certificate under the Act and got the same on 1-12-1952. Premji Kurji, after getting the occupancy certificate, released his rights over the suit land in favour of plaintiff No.1. It is the case of the plaintiffs that plaintiff No.1 was the sole owner and occupant of the suit land and, therefore, became entitled to get back possession of the suit land from defendant No.1 on expiry of the period of lease. As defendant No.1 did not hand over possession to plaintiff No.1, he filed Suit No.25/61 in the Court of Mamlatdar under the Mamlatdars' Court Act. It was dismissed. Revision Application filed against the said decision before the Deputy Collector, Jamnagar was allowed. Defendant No.1 thereupon preferred a revision application to the High Court which came to be allowed holding that plaintiff No. 1's suit filed on the basis of the lease deed was premature. Plaintiff No.1 waited for the said period of ten years to be over and thereafter filed the present suit. Plaintiff No.1 also joined the heirs of deceased Premji Kurji as co-plaintiffs only to avoid the plea that the suit was bad for non-joinder of necessary parties.

(3.) As stated earlier, the plaintiffs have prayed for a decree for possession and also mesne profits. The case of the defendants is that the occupancy certificate, which has been granted to the plaintiffs, is not according to law and hence it was denied that the plaintiffs are the owners of the suit land. According to them defendant No.1 was in possession of the suit land as a tenant since before the Saurashtra Barkhali Abolition Act came into force and therefore he automatically became the occupant of the suit land and for that reason the plaintiffs are not entitled to recover possession from him. The defendants also raised a contention that the Civil Court had no jurisdiction to decide the suit and that, in any case, it was barred by law of limitation. The defendants also raised a contention that as no notice as required by law was served upon them, the suit deserved to be dismissed on that ground also. The learned Civil Judge did not accept the contention of the defendants that the suit was time barred or that he had no jurisdiction to try the suit in view of the earlier decision of the High Court in Revision Application filed by defendant No.1. He, however, held that the occupancy certificate which was granted in favour of plaintiff No.1 and Premji Kurji was not a valid one inasmuch as the procedure required for granting occupancy certificate was not followed. He also held that though Civil Court has no jurisdiction to settle, decide or deal with any question which is by or under the said Act required to be settled, decided or dealt with by the Mamlatdar, he had the jurisdiction to examine whether the mandatory provisions of the Act were complied with or not and, therefore, it was open to him to decide whether the occupancy certificate was valid or not. He held in favour of the plaintiffs that the lease deed was executed by defendant No.1 and according to the said lease deed defendant No.1 was required to restore possession of the land after the lease expired in S.Y. 2017, i.e. 1960-61 A.D. As regards the validity of the notice, the learned Civil Judge held that the same was not given as required under Section 84 of the Bombay Land Revenue Code and, therefore, it was not a valid notice, and hence, no decree for possession can be passed in favour of the plaintiffs. He, therefore, dismissed the suit.