Jurisdiction of the Civil Court and limitation of the suit

ORDER :

1. Present Second Appeal has been preferred by the appellants – original plaintiffs against the concurrent findings of the learned courts below arising out of the Regular Civil Suit No.24 of 2012 filed by the appellants – plaintiffs wherein respondent – defendant filed application Ex.30 under Order 7 Rule 11(a)(d) of the Code of Civil Procedure seeking rejection of the plaint, which was allowed and the plaint was rejected by the learned 2nd Additional Senior Civil Judge, Mangrol, against which the appellants – original plaintiffs preferred Regular Civil Appeal and after hearing the parties at length, the said appeal came to be dismissed by the learned 3rd Additional District Judge, Surat vide order dated 31/11/2021. Being aggrieved by the said order, the appellants – original plaintiffs have preferred the present Appeal From Order.

2. Heard Mr.R.E. Variava, learned advocate for the appellants. He has submitted that both the courts below have not appreciated the plaint and the evidence produced on record and failed to appreciate that the question of limitation and cause of action was mixed question of law and facts, however, the same has not been taken into consideration. It is submitted that the provisions of section 73, 73(A), 73(AA), 73(AC) and 73(AD) of the Gujarat Land Revenue Code are not considered and the Civil Court though has no jurisdiction for transfer of the land involved under the Gujarat Land Revenue Code belonging to the tribal community without prior permission of the Collector, the Court cannot entertain the suit and has erred in dismissing the suit on the ground of limitation.

3. I have examined the findings of both the courts on the issue raised in the suit. Upon examination of the judgement and order of both the courts below, no infirmity, illegality, perversity or impropriety is pointed out in the concurrent findings of the facts rendered by the courts below by the learned advocate for the appellant. Not only that, the learned advocate for the appellant is unable to show to this court any finding recorded by the learned courts is without any evidence or there is any illegality in the findings.

4. The grievance is raised by the appellant with regard to the provisions of section 73, 73(A), 73(AA) etc. of the Gujarat Land Revenue Code where the Civil Court has not entertained the suit, it is apparent that the suit has been filed by the appellant plaintiff himself. Moreover, as regards the jurisdiction of the Civil Court is ousted in the case of transfer of a land by tribals, that issue regarding mutation entry on the ground of Will executed in favour of the defendant respondent is challenged before the revenue authority and it is for the revenue authority to decide whether the property can be transferred by a tribal in the name of another tribal as per the provisions of the Code, but here the suit was filed by the appellant plaintiff challenging the Will executed by the deceased grand-father of the plaintiff in favour of the respondent defendant and in that issue of limitation based upon the cause of action and the plaint has been raised by the defendant, which is a legal issue, as it is to be decided only on the basis of the plaint of the plaintiff and not on the defence of the defendant and here both the courts have rightly observed and held that no cause of action has arisen to file the suit and the suit is beyond the period of limitation.

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8. Under the circumstances, this court does not find any error or law in the concurrent findings of the learned courts below. In exercise of powers under section 100 of the Code of Civil Procedure, jurisdiction is confined to substantial question of law only. Here in this case, no substantial question of law has been raised by the appellant so as to enable this Court to admit the present appeal.

9. The scope of Second Appeal under section 100 is limited. Second Appeal is competent only if it involves, at the stage of admission, substantial question of