SAMBHOO UKARDA MALI Vs. PARASHRAM SHRIKISAN MARWADI

JUDGEMENT

(1.) THIS is a plaintiffs' appeal from the judgment of the Additional District Judge, Khamgaon, in Civil Appeal No. 64-A of 1935 decided on 14th April 1936. The only point which arises for determination in this appeal is whether the suit was within time. There was a dispute regarding a right of way which provided access to Survey No. 71. It was inquired into by the Tahsildar Malkapur at the instance of the defendant Parashram, and the Tahsildar passed his order on 10th January 1934 in defendant's favour. The plaintiffs thereon preferred an appeal to the Deputy Commissioner which was heard by the Sub-Divisional Officer, Khamgaon, who decided it on 14th March 1934. An appeal to the Commissioner was decided on 13th June 1934 and a revision application made to the Local Government was decided on 12th December 1934. The decision having been given against the plaintiffs they filed a suit on 11th March 1935 in terms of Section 129(3) of the Berar Land Revenue Code 1918. Both the Courts below held that the cause of action arose on the date on which the Tahsildar's order was passed that is to say on 10th January 1934 and that the suit having been filed more than one year after that date was barred by time.

(2.) THE terms of Sub-section (3) of Section 129 of the Berar Land Revenue Code go to show that it is the decision of the Deputy Commissioner which is the starting point of limitation of one year prescribed therein for instituting a civil suit. The question is whether the Tahsildar's order should be deemed to be the order of the Deputy Commissioner for the reason that he was empowered by a Notification of the Local Government to enquire into and decide the right of way over the boundaries contemplated in Section 129 of the Berar Land Revenue Code. The notification invests all Tahsildars with powers under the Code specified in Schedule appended to that Notification. The Tahsildar is thereby authorized to enquire into and decide such disputes but that does not invest him with powers of the Deputy Commissioner so as to make his decision a decision of the Deputy Commissioner. There is a clear and unmistakable difference in the Notification afore-mentioned and the Notification Nos. 593-277-XII dated 7th February 1929, which confers on the Sub-divisional Officers the powers of a Deputy Commissioner under Section 32(1) Clause (1) to hear appeals from orders passed by Tahsildars, and Naib-Tahsildars under the Code. Whereas in the first notification the expression is "invest all Tahsildars with powers under the Code," the expression in the other notification is "to confer on all Subdivisional Officers the powers of a Deputy Commissioner under Section 32," etc. The meaning is clear beyond any controversy. While the Tahsildar exercised the powers under the Code under Section 129 in this case his decisions did not have the force of the decisions of the Deputy Commissioner ; the Subdivisional Officer who exercised the powers of a Deputy Commissioner under Section 32 stood in the shoes of the Deputy Commissioner and his decision took effect as if it had been made by the Deputy Commissioner himself.