1. In this case the plaintiff sued the Secretary of State for a declaration of his title to a portion of the land situate to the east of survey No. 452 on the allegation that he purchased the land survey No. 451, and that he had acquired title to the laud in dispute by adverse possession.
2. It appears that one Ranchhod Rama, the holder of survey No. 452, made an application to the revenue authorities for determination of the boundary between survey No. 451 and survey No. 452 on February 12, 1918. The matter was referred to the Mahalkari and the Circle Inspector. On October 29, 1918, it was found that survey No. 452 was encroached upon and on January 4, 1922, the District Deputy Collector referred the applicant to a civil Court. It appears, however, that this order was set aside on appeal, and on March 22, 1923, the District Deputy Collector passed an order, Exhibit 38, holding that the property in dispute formed part of survey No. 452 and ordered the eviction of the plaintiff. The order of the District Deputy Collector was confirmed in appeal by the Collector, by the Commissioner and by Government, and on August 14, 1925, notice was given under Section 202 to the plaintiff to vacate the land, whereupon the plaintiff brought the present suit on September 2, 1925.
3. The defendant raised several objections, that the notice was bad under Section 80 of the Civil Procedure Code, that the suit was barred under Sections 119 and 121 of the Bombay Land Revenue Code and Section 4(g) and Section 4(a) of the Bombay Revenue Jurisdiction Act, that the suit was barred by limitation, and on the merits it was contended that the plaintiff did not acquire title by adverse possession.
4. The learned District Judge disallowed all the objections of the defendant and passed a decree in favour of the plaintiff.
5. The first question arising in the appeal is whether the notice is bad under Section 80 of the Civil Procedure Code. The ground of objection is that the cause of action was initially stated to arise on March 22, 1923, when the District Deputy Collector passed the order, Exhibit 38, ordering eviction of the plaintiff, and subsequently the plaintiff applied for amendment of the plaint and introduced another date, namely, August 29, 1925, as the date on which the cause of action arose in paragraphs 10 and 11 of the plaint, and it is, therefore, contended that the notice given before the accrual of the cause of action subsequently mentioned was invalid, and the remedy of the plaintiff was to withdraw the suit, give a fresh notice, and bring another suit. It appears, however, that in the written-statement of the defendant the real cause of action was stated to arise on March 22, 1923, the very date which was mentioned by the plaintiff' in the unamended plaint as being the date on which the cause of action arose. That being so, it appears that both the parties were at one with regard to the date of the cause of action, namely, that it arose on March 22, 1923, and if that is so, notice which was given under Section 80 stating the cause of action to have arisen on March 22, 1928, cannot be said to be in any way irregular or defective. It appears that the plaintiff by way of caution got an amendment made in the plaint and alleged that the cause of action arose either on August 20, 1925, when the notice of eviction was affixed to the outer door of the plaintiff's house or earlier on December 9, 1924, when the plaintiff was informed that the Government declined to interfere with the orders already passed. The order of eviction followed, as a matter of course, the order passed by the District Deputy Collector on March 22, 1923, and we think that the real cause of action arose on March 22, 1923, and in that view the notice given by the plaintiff was valid. We, therefore, agree with the view of the lower Court that the notice given under Section 80 was proper.
6. The second point urged before us is that the suit was barred under Sections 119 and 121 of the Bombay Land Revenue Code and Section 4(g) of the Bombay Revenue Jurisdiction Act. It appears from the evidence of the Circle Inspector that there were already boundary marks in survey No. 452. There does not appear, therefore, to be a real boundary dispute between the adjoining owners of survey Nos. 451 and 452. The real question between the parties was whether the land in dispute was in possession of the plaintiff for more than twelve years. The Mahalkari in his order disregarded the question of adverse possession on the ground that the plaintiff had not proved that his possession of the encroached land was anterior to the British Rule. The District Deputy Collector held that the land was encroached upon by the neighbour and therefore he was liable to be evicted.
7. According to the decision in Bhaga v. Dorabji : (1920)22BOMLR1111 the decision of the Collector under Section 121 amounts to nothing more than the determination of the position where the boundary line lies, and the title of the parties is determined according to the position of the boundary line. The Collector's decision, however, does not preclude any one of the disputing parties from invoking the aid of a civil Court on the ground that he had acquired a portion of his neighbour's survey number by adverse possession. Some doubt seems to have been thrown on this decision by Marten C.J. in the case of Kanhailal v. Ismailbhai : (1926)28BOMLR1498 . It appears, however, that in Bai Ujam v. Valiji Rasulbhai I.L.R. (1880) Bom. 450 Sir Charles Sargent observed as follows (p. 460):-
We agree, therefore, with the Subordinate Judge that, as the piece of land in question is admittedly within the boundary as fixed by (the) Collector, and as the defendant does not claim to have acquired, since the Collector's decision, the right to hold the plaintiffs' land except by adverse possession, which the Subordinate Judge finds not proved, the plaintiffs are entitled to have the possession of it restored to them.
8. According to the decision in Ganesh v. Ramchandra : (1921)23BOMLR1209 the inquiry officer has jurisdiction under Section 121 of the Bombay Land Revenue Code to settle the boundary between the lands of adjoining owners, and the line drawn by him to indicate the boundary is determinative of the rights of land-holders on either side but he has no jurisdiction to decide the right which the owner of one number claims to exercise over the land belonging to holder of adjoining number. In Malkarjunappa v. Anandrao : (1929)31BOMLR957 it was held that it was doubtful if the Provincial Legislature could have excluded the jurisdiction of a civil Court to decide the rights of parties. The revenue or survey officer has the right to settle conclusively the boundary dispute between the parties and determine the title of parties flowing from the position of the boundary line but has no jurisdiction to decide whether or not a holder of one survey number has acquired by prescription title over the land of adjoining survey number by adverse possession.
9. Section 119, first clause, refers to the determination of field boundaries at the time of survey, and the second clause refers to the determination of the boundary after the survey or in respect of a field or holding that has not been surveyed. The dispute in respect of a field already surveyed would arise either on account of accidental or intentional obliteration of boundary marks. The legislature has confided the power of determining the boundary line to the revenue authorities. After the boundary line has been determined by the Collector the decision of the Collector is conclusive as to the proper position of the boundary line or boundary marks and of the rights of land holders on either side of the boundary. If the disputed strip of land forms part of the plaintiff's survey number demarcated by the boundary fixed by the Collector, the title of the plaintiff is conclusive and he can bring a suit in the civil Court on the strength of title and such a suit is not barred by Sections 119 and 121 and Clause (g) of Act X of 1876-see Bala v. Nana (1898) P.J. 799 If a plaintiff brings a suit for possession on the strength of his title before the determination of the boundary by the Collector, and it appears that the question between the parties is a boundary dispute only, the Court may direct one of the parties to apply to the Collector and obtain a decision of that officer according to the decision in Lakshman v. Antaji I.L.R. (1900) Bom. 312 2 Bom. L.R. 1083 and such decision of the Collector will be conclusive as to the position of the boundary line. The civil Court's jurisdiction is barred so far as determination of boundary line is concerned. The question of adverse possession arises only when a person who has no title encroaches on the land of another and the true owner does not bring a suit for possession in a civil Court for more than twelve years. That question must be decided by the civil Court, and is outside the jurisdiction of the Collector.
10. It appears that the dispute between the parties in the present case before the revenue authorities was not strictly a boundary dispute, for according to the evidence of the Circle Inspector the boundary marks were already in existence. The decision of the question whether the plaintiff was entitled to retain possession of the land by virtue of adverse possession was beyond the jurisdiction of the revenue authorities, and fell properly within the jurisdiction of a civil Court. We think, therefore, that the suit is not barred under Section 119 or under Section 121 of the Bombay Land Revenue Code or under Section 4(g) of the Bombay Revenue Jurisdiction Act.
11. The next question is whether the suit is barred under Section 4(a) of the Bombay Revenue Jurisdiction Act. The learned District Judge has given three reasons for holding that the suit is not barred under Section 4(a) of the Bombay Revenue Jurisdiction Act. I think, however, that one of the reasons is conclusive against the application of Section 4(a) of the Bombay Revenue Jurisdiction Act, and, therefore, it is unnecessary to discuss the other grounds. As I have already stated, the revenue authorities had no jurisdiction to decide the rights of the parties based on adverse possession, which was a matter peculiarly within the jurisdiction of a civil Court. If the order of the District Deputy Collector is ultra vires, the bar under Section 4(a) of the Revenue Jurisdiction Act would not arise according to the decision of this Court in Patdaya v. The Secretary of State for India I.L.R. (1923) Bom. 61 s. c. 25 Bom. L.R. 1160.
12. Similarly, the question of limitation also would not arise if the order of the District Deputy Collector was ultra vires.
13. The next question is whether the plaintiff has proved that he has acquired title to the land by adverse possession. It is contended on behalf of the appellant that the possession which has been proved in this case was merely permissive or such that a true owner would not object to according to the decision in Framji Cursetji v. Goculdas Madowji I.L.R. (1892) Bom. 338 or was not such as would amount to adverse possession according to the decision in Ganpati v. Raghunath (3) I.L.R. (1909) Bom. 712 11 Bom. L.R. 1087 It appears, however, from the evidence that the land was enclosed by a hedge ever since the purchase-of the plaintiff in 1908. In 1913 there was an erection of a structure of corrugated iron sheets on the land in dispute and the Circle Inspecter in his evidence stated that he had satisfied himself in 1918 that there was an encroachment and came to the conclusion that the encroachment must have been prior to the plane table survey, which was effected in 1911 and 1912. It would, therefore, follow that there were acts of ownership exercised by the plaintiff on the land in suit. The physical facts proved in the case coupled with the evidence of the defendant himself and his witnesses Hira, Exhibit 66, Amarchand, Exhibit 65, Mohanlal, Exhibit 64, and Khimchand, Exhibit 62, establish that the plaintiff has acquired title to the land by adverse possession at least from 190S, the date on which he purchased the land in suit. Mithal Daya, Exhibit 89, stated that the encroachment was effected more than twelve years before suit. We think, on the whole, that the evidence on behalf of the plaintiff proves that the plaintiff has acquired title to the disputed land by adverse possession.
14. The view, therefore, of the lower Court is right, and this appeal must be dismissed with costs.
15. I agree.