( 1 ) THIS appeal is preferred by the defendant-State of Gujarat against the judgment and order dated 27th August, 1981, passed by the learned District Judge, Mehsana, in Regular Civil Appeal No. 180 of 1979, arising of the judgment and order dated 3rd October, 1979, passed by the learned Civil Judge (S. D.) Mehsana, in Regular Civil Suit No. 121 of 1974.

( 2 ) ). The plaintiff is Kolvada Gram Panchayat. It appears that several persons had made applications to the Collector, Mehsana, for allotment of land in village kolvada for construction of residential house. However, no open land was available in the village site. The Collector, therefore, in exercise of the powers conferred under sub-sec. (4) of Sec. 96 of the Gujarat Panchayats Act, 1961 (hereinafter referred to as the Act), made an order on 29th January, 1974 (Ex. 44), directing that the land bearing S. No. 878/3, admeasuring 5-Acre-35 gunthas, and the land bearing S. No. 878/2, admeasuring 4-Acre-28 Gunthas, situated in the Sim of village Kolvada, be resumed for the purposes of house site. Feeling aggrieved, the Gram Panchayat instituted the above-referred Regular civil Suit No. 121 of 1974 in the Court of the learned Civil Judge (S. D.) mehsana, and challenged the aforesaid order dated 29th January, 1974. It was contended that earlier on 29m November, 1972, the Panchayat had passed a resolution that the land bearing S. No. 878/2 being Khalvad land (thrashing land) for the villagers, be not converted into house site and accordingly the collector by order dated 29th January, 1974 (Ex. 43) had directed to set aside the earlier order made by the Prant Officer on 3rd May, 1973, and had directed to call for a fresh proposal from the Taluka Development Officer and the mamlatdar, Vijapur. The impugned order dated 29th January, 1974, was made contrary to the order Ex. 43, was mala fide, illegal, and required to be set aside. The suit was duly contested by the defendants by filing a written statement at Ex. 20. It was contended that there were several applications received for allotment of house site and no other house site being available, the Collector in exercise of the powers conferred under Sec. 96 (4) of the Act, had decided to resume the above-referred lands of S. Nos. 878/2 and 878/3, and to convert the same as house site. Considering the topography of the village, the aforesaid two pieces of land were found to be suitable for housing purposes.

( 3 ) ). The learned trial Judge rejected the allegation that the impugned order was mala fide, improper, illegal or void. The learned trial Judge also held that the suit was barred by the Bombay Revenue Jurisdiction Act, 1876, and thus dismissed the same. Feeling aggrieved, the Gram Panchayat preferred Regular civil Appeal No. 180 of 1979 before the District Court, Mehsana. The learned district Judge held that the powers under Sec. 96 (4) of the Act had application to open site or waste, vacant or grazing land alone. The land bearing S. No. 878/2 was being used as a Khalvad land (thrashing land) and was not covered under Sec. 96 (4) of the Act. The Collector, therefore, had no jurisdiction to resume such land under Sec. 96 (4) of the Act. The impugned order thus was made without the authority of law and was a nullity, suit against such order would lie and bar under the Bombay Revenue Jurisdiction Act, 1876, would not apply. Feeling aggrieved, the State Government has preferred the present appeal.

( 4 ) ). The following questions of law have been framed by this Court : (1) Whether the appellate Court was right in law in holding that the impugned order passed by the Collector, Mehsana, dated 29-1-1974 is illegal, void and ineffective in view of Sec. 96 (4) of the Gujarat Panchayats Act and also under sec. 38 of the Bombay Land Revenue Code? 1247 (2) Whether the appellate Court was right in law in holding that the civil court has jurisdiction to entertain and try the suit? (3) Whether the appellate Court is right in