Back
Gujarat High Court
Judgename :A.N.Divecha
MEDATIA INDRASINGHJI - Appellant
Versus
RAVAL NARAYAN KISHORESINH - Respondent
C.A.308 of 1977
Decided On : 07/30/1993
The conclusion reached by the Courts below is patently erroneous and unsustainable in law. As pointed out hereinabove, the dispute was never between two private parties. The suit land was found to be of the ownership of the erstwhile State at the relevant time. A building was raised thereon by the State and it was in occupation of the defendant as a servant of the State. As aforesaid, the defendant wanted to purchase it. At that state plaintiff No. 1 entered the fray and claimed its ownership on the basis of some Parvana issued in the name of his father some time in 1947. Even under the Parvana, the father of the plaintiffs was not given the suit land absolutely or in outright ownership but he was permitted to use it by keeping it open and he was prohibited from amalgamating it with his house. It was found by the Mamlatdar that this Parvana to use the suit land was given to the father of the plaintiffs on 9th March 1923. In the inquiry under Section 37 (2) of the BLR Code culminating into the Order at Exh.83 on the record of the case, the Mamlatdar has found that the father of the plaintiffs did not know about this grant in his favour till he received the Parvana in 1947. It has been found by the Mamlatdar as transpiring from the Order at Exh. 83 on the record of the case that in the meantime the erstwhile State had raised one building on the suit land and it was in occupation of the defendant in his capacity as an Officer of the Court of Wards. As pointed out hereinabove, the defendant wanted that building to be repaired by the State or in the alternative he offered to purchase the building standing on the suit land. At that stage, as pointed out hereinabove, plaintiff No. 1 made an application on 30th April 1952 putting his claim on the basis of one Parvana issued in his fathers name on 22nd September 1947. Only in that context the Mamlatdar undertook the necessary inquiry under Section 37(2) of the BLR Code. With respect, this aspect of the matter appears to have been lost sight of by the Courts below. It was certainly a claim on the government land made by and on behalf of the plaintiffs and it would certainly fall within the purview of Section 37(2) of the BLR Code.
[Para 5]
Bombay Land Revenue Code 1879 — Secs. 37 (2) & 37(3) — order under Sec. 37(2) — Period of limitation to challenge — the order — Sec. 37(3) prescribes period of one year from date of order for filing appear — But if order not challenge but a such is filed for relief inconsitant with such order beyond precribe period of the suit will have to be dismissed — Incase suit failed after 12 years of Mamlar order — Such is also filed 2 years after judgement of Tribunal and her either either case — it is her by Sec. 37(3) & time barred as law.
It has been provided in Sec. 37 (3) that the Order passed under Section 37(2) has to be challenged within one year from its making. If any appeal is preferred there against then the time limit of one year would start from the date of the appellate order. It has further been provided therein that if the Order is not challenged but a suit is filed for the relief inconsistent with such Order beyond the prescribed period the suit will have to be dismissed.
[Para 9]
As pointed out hereinabove, the Order of the Mamlatdar at Exh. 83 was passed on 23rd February 1955. The present suit has admittedly been filed on 12th March 1967, that is, more than 12 years after the date of the Order at Exh. 83. It is certainly hit by the relevant provisions contained in Section 37 (3) of the BLR Code. Even if it is assumed for the sake of argument that the judgment of the Gujarat Revenue Tribunal at Exh. 99 on the record of the case was in answer to the challenge to the Order at Exh. 83 on the record of the case, that judgment is pronounced on 2nd April 1965. The suit is filed nearly two years thereafter. In that case also it will be hit by Section 37(3) of the BLR Code. The Courts below were not right in not holding it to be time- barred in view of the aforesaid statutory provision.
[Para10]
( 1 ) ). The decision rendered by the learned Assistant Judge of Sabarkantha at Himatnagar on 22/07/1977 in Regular Civil Appeal no. 5 of 1973 is under challenge in this appeal at the instance of the appellant before this Court under Sec. 100 of the Civil Procedure Code, 1908 (the Code for brief ). Thereby the learned lower appellate Judge dismissed the appeal and affirmed the judgment and the decree passed by the learned Civil Judge (S. D.) at Himatnagar on 12/01/1973 in regular Civil Suit No. 46 of 1967. It is needless to say that the trial court decreed the suit instituted by the present respondents.
( 2 ) ). It may be mentioned that during the pendency of this appeal the original appellant has breathed his last and his heirs and legal representatives have been brought on record in his place by virtue of the order passed by this Court on 17/10/1984 in Civil Application no. 2518 of 1984. The appellant was the defendant and the respondents were the plaintiffs in Regular Civil Suit No. 46 of 1967. For the sake of convenience I shall refer to the parties to this appeal as they were arraigned in the trial Court, that is, the appellant as the defendant and the respondents as the plaintiffs.
( 3 ) ). The dispute centres round one piece of land admeasuring 12 ft. north-south and 36 ft. east-west situated in Himatnagar (the suit land for convenience ). The plaintiffs claimed its ownership as its having been allotted to them on 9/03/1923 under the Parvana issued on 22/09/1947. It appears that the defendant disputed the grant of land to the plaintiff in 1923. According to him, the suit land was of the ownership of the State and it had constructed some building over it and he was in occupation of that building as a servant of the State. According to him, it was in dilapidated condition and he, therefore, applied on 22/04/1940 for its reparation at the expenses of the State or in the alternative he offered to purchase it at a price fixed by the State authorities. This dispute resulted into institution of one suit in the Court of the Civil Judge (S. D.) at himatnagar by the plaintiff for the relief of permanent injunction against the defendant. It came to be registered as Regular Civil Suit No. 34 of 1966. It appears that a Commissioner was got appointed by the plaintiff in that suit and it transpired from the Commissioners report that the defendant was in possession of the suit land. The plaintiffs thought of amendment of the plaint. It appears that, however, on second thoughts they withdrew the suit with a permission to file a fresh suit on the same cause of action. That is how Civil Suit No. 46 of 1967 came to be filed by the plaintiffs against the defendant in the Court of the Civil Judge (S. D.) at Himatnagar for a declaration that the suit land is of their ownership and for claiming its possession from the defendant and for getting demolished the wall constructed by the defendant. The defendant filed his written statement at Exh. 10 on the record of the case and resisted the suit on various grounds. On the pleadings of the parties, the learned trial Judge raised the necessary issues at Exh. 15 on the record of the case. After recording evidence and hearing the parties, by his judgment and decree passed on 12/01/1973 in regular Civil Suit No. 46 of 1967, the learned Civil Judge (S. D.) himatnagar decreed the suit instituted by the plaintiffs. That aggrieved the defendant. He, therefore, carried the matter in appeal before the District court of Sabarkantha at Himatnagar. His appeal came to be registered as regular Civil Appeal No. 5 of 1973. It appears to have been assigned to the learned Assistant Judge of Sabarkantha at Himatnagar for hearing and disposal. After hearing the parties, by his decision rendered on 22/07/1977 in Regular Civil Appeal No. 5 of 1973, the learned Assistant Judge of Sabarkantha at Himatnagar dismissed the appeal. The aggrieved defendant has thereupon invoked the further appellate jurisdiction of t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
