SHANKERBHAI KASHIBHAI Vs. RAISINGJI JASVATSINGJI

JUDGEMENT

(1.) The plaintiff is a mortgagee of certain Wanta iand mortgaged to him in 1893 by the mother of a Talukdar who was appointed guardian of his property in the year 1881 under the Bombay Guardians and Wards Act, then in force, of 1864. The mortgage was usufructuary and it is not disputed that the plaintiff has been in possession up to the present time. The Talukdar s estate was taken under the management of the Talukdari Settlement Officer in the year 1896 under the provisions of Section 28 of the Gujarat Talukdars Act, VI of 1888. In 1905, after that Act had been amended by Bombay Act II of 1905 by the addition of Section 29B, the Talukdari Settlement Officer in accordance with the provisions of that section issued a notice calling upon all persons having claims against the Talukdar or his property to submit the same in writing within six months from the date of the publication of the notice. The six months expired on the 23rd June 1906 without any notice being given by the plaintiff to the Talukdari Settlement Officer and in 1914, the Talukdari Settlement Officer addressed a notice to the plaintiff under Section 202 of the Bombay Land Revenue Code (Bombay Act V of 1879) and Section 33 of the Gujarat Talukdars Act, informing him that the land had been in his possession under a mortgage deed for Rs. 1,200; that a notice had been issued under Section 29 of the Act on the 21st December 1905; that the plaintiff s claim was not submitted within six months; and therefore, that the debt was satisfied under Section 29B(3); therefore the plaintiff s possession of the land was unlawful. He was therefore, ordered to give up possession within a month of the receipt of the notice.

(2.) In consequence of that notice the plaintiff filed the present suit praying for a declaration that he was entitled to retain possession of the land in suit as against the Talukdar and the Talukdari Settlement Officer and for a permanent injunction restraining: them from disturbing his possession. He contended that it was not necessary under Section 29B to notify his claim as it did not relate to Talukdari estate and if it were assumed that the mortgage was created by the Talukdar s guardian without the authority of the Court and was therefore invalid, the plaintiff had been in adverse possession for over twelve years.

(3.) The points which have been argued are, first, whether the claims against a Talukdar or his property in Section 29B are confined to claims against a Talukdari estate; secondly, whether the plaintiff can in any view of the facts be held to have had adverse possession for more than twelve years; and thirdly, whether the Talukdari Settlement Officer is entitled to evict the plaintiff under the provisions of Section 33 of the Gujarat Talukdars Act, when read with Section 202 of the Bombay Land Revenue Code.