ORAL JUDGMENT :- Rule.

2. Rule is made returnable forthwith by consent of parties. Service on respondent No.2 is dispensed with.

3. Respondent No.1 herein filed a suit titled as :-

(quoted from page 8 of the Paper-book of Writ Petition).

4. The defendant No.1 - present petitioner did not file Written Statement, however, filed application (Exh.23) with following pleas and prayers :-

"1) The suit is filed by the plaintiff for removal of encroachment over suit field and thereafter for possession in favour of plaintiff. The suit property is an agricultural land described in the plaint.

2) .... The suit is therefore squarely covered under Article 137 of the Limitation Act, which provides three years limitation which commenced when the right to apply accrues in the present suit, right to apply as alleged in para 5 of suit arose on 19-7-1999 while the suit is filed on 2510-2002 which is apparently beyond the period of three years as provided under Article 137 of the Limitation Act. The suit is barred by law, as such this Hon'ble Court had no jurisdiction to adjudicate upon the same.

3) The plaintiff in the present suit has sought decree for removal of encroachment and possession of suit property which is an agricultural land. It is submitted that the Mamlatdars Court Act, 1986, which is special matter in the suit. The Mamlatdars Court Act gives powers under section 5 of the said Act, to Mamlatdar Court to adjudicate all disputes as specified thereunder.

The Mamalatdar's Court Act, 1906 being special enactment, the right to adjudicate dispute under common law is barred. The present suit is admittedly filed. The present suit is admittedly filed under common law. The issue involved in the suit is within exclusive jurisdiction of Mamlatdar's Court Act this Hon'ble Court had no jurisdiction to try and adjudicate the suit.

PRAYER :

i) Frame preliminary issue, regarding tenability of suit. ii) Dismiss the suit, as not maintainable and within jurisdiction of this Hon'ble Court."

(quoted from pages 12, 13 and 14 of the Paper-book of Writ Petition).

5. This application (Exh.23) was opposed. Learned Civil Judge (Junior Division), Mahagaon, framed preliminary issues (after initial decision and remand of the case). These issues are ;-

"Preliminary Issues

1. Whether the suit in the present form is maintainable before the Civil Court?

2. Whether Civil Court have no jurisdiction to try the present suit?

3. Whether the suit is barred by limitation?"

(quoted from page 17 of the Paper-book of Writ Petition).

6. Learned Civil Judge (Junior Division) heard and decided these issues in favour of plaintiff. Hence, the defendant No.1 has preferred present Writ Petition on same grounds of objections as raised by him before trial Court.

7. Heard learned Advocate Mr. Bhattad for the petitioner at length.

Issue of Limitation

8. Learned Advocate Mr. Bhattad strongly urged that the suit is for removal of encroachment, which cause of action is covered by Article 137 of the Limitation Act. It would be proper to quote Article 137 of the Limitation Act, and is quoted below for ready reference :-

"PART 11- OTHER APPLICATIONS

137. Any other application for Three years When the right to

which no period of limitation apply accrues.

is provided elsewhere in this division. "

9. On bare perusal and reading of Article 137 and Article 65, what reveals is as follows :-

(a) This is a residuary Article and shall apply where no other Article provides period for limitation.

(b) Article 65 of the Limitation Act applies to suits based on title.

(c) Article 137 applies to "applications" and not "suits", for which no other article provides for the period of limitation.

10. There is one more factual aspect which has to be adverted. Though in the narration of claim in suit, the description is quoted in Para No.3, above averments and prayers are clearly for delivery of possession. Bare perusal of prayers makes this position clear, and on the basis of language used therein, it i

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