1. This is a plaintiff's appeal against the Government in a suit for recovery of possession of certain property on the ground that the plaintiff was illegally dispossessed of the same by the defendant, and for further ancillary reliefs.
2. The defendant's case, among other things, was that the suit was barred under Section 11 of the Bombay Revenue Jurisdiction Act inasmuch as the plaintiff did not file a proper second appeal to the Government against the decision of the Commissioner in appeal presented by the plaintiff against the original order of the Collector.
3. The trial Court found on the issues that the suit was not barred under Section 11 of the Bombay Revenue Jurisdiction Act, and that on the evidence the plaintiff had succeeded in proving his ownership of the plaint property, and, therefore, he was entitled to the reliefs claimed by him. The finding about the maintainability of the suit was based on the ground that all that Section 11 of the Bombay Revenue Jurisdiction Act required was a presentation of the appeal and that even though that presentation might be defective for some reason, as, for instance, the appeal being filed beyond time, none the less it is a presentation, and as Section 11 contemplates simply presentation, and not necessarily a valid presentation, there was no bar of that section in this case inasmuch as there was a presentation of the appeal to the Government, and the trial Court relied upon two decisions of this Court in Abaji Parashram v. Secretary of State for India I.L.R.(1896) 22 Bom. 579 and Ranchod v. Secretary of State for India I.L.R. (1897) 22 Bom. 583.
4. On appeal by the defendant, the learned District Judge has disposed of the appeal on the preliminary point of the maintainability of the suit, and has held that the suit is barred under Section 11, and, therefore, he has not gone into the merits of the case. The learned District Judge is of opinion that as the appeal was filed to the Government without the necessary annexture as required by law, i.e., Bombay Land Revenue Code, that presentation was not in proper form, that, in fact, it was not an appeal at all, and that, therefore, it cannot be said that an appeal had been filed or presented as required by Section 11 of the Bombay Revenue Jurisdiction Act.
5. Against this decree of the lower appellate Court the present appeal has been filed by the plaintiff, and the contention of his learned advocate is that the decision of the trial Court is correct inasmuch as all that Section 11 requires is presentation, and there has been here a presentation, even though it may be either defective or invalid, and reliance is placed on the two cases on which the trial Court has relied. On the other hand, the learned Assistant Government Pleader on behalf of the defendant contends that these two cases do not apply to the facts of this case inasmuch as there is no question of limitation in this case, but the question is, whether there has been a presentation of an appeal as required by law, and that in the present case a second appeal did lie to the Government, and if so, under Sections 204 and 208 of the Bombay Land Revenue Code it was necessary that the appeal to the Government should have been accompanied by the decision or order appealed against, and he invokes the aid of the parallel provisions of the Civil Procedure Code in Order XLI, Rule 1, in which it is provided that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf, and that the memorandum shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded, and he further relies upon the construction of these provisions in the cases of Chunilal Jethabhai v. Dahyabhai Amulakh I.L.R.(1907) 32 Bom. 14 : S.C. 9 Bom. L.R. 1138., Chamela Kuar v. Amir Khan I.L.R. (1893) All. 77, Lingayya v. Chinna Narayana ( I.L.R.1917 Mad. 169, and Abdul Hakim Chowdhury v. Hem Chandra Das I.L.R.(1914) Cal. 433, to show that an appeal could not be said to have been presented at all unless it was accompanied by the necessary annextures contemplated by this rule. He contends that these provisions being analogous to the provisions under the Bombay Land Revenue Code, the same reasoning should apply here also, and that, therefore, there is a clear bar of Section 11 of the Bombay Revenue Jurisdiction Act. I think that contention is correct. The two decisions on which reliance has been placed by the trial Court are distinguishable from the facts of this case. In the first case relied upon, i.e., Abaji Parashram v. Secretary of State for India, the question did not arise in the form in which it arises here. There an appeal was presented to the Commissioner presumably with all the necessary accompaniments. But without waiting for a reply from the Commissioner, the plaintiff filed a suit in the civil Court and the bar of Section 11 of the Bombay Revenue Jurisdiction Act was sought to be applied. But that plea was overruled, and it was held that it was not incumbent on the plaintiff to wait for the actual decision of the Commissioner. It was enough if the appeal had been presented to the proper authority. But that is not a decision on the point before us as to whether a presentation would be a proper presentation if it is not accompanied by a certified copy of the order appealed against. The other decision in the case of Ranchod v. Secretary of State for India deals with the point of limitation, and the decision is that the words 'an appeal allowed by law' in Section 11 of the Bombay Revenue Jurisdiction Act do not mean 'an appeal within the time allowed by law.' In other words, all that the section deals with is an appeal as provided by the law and not an appeal within the period of limitation contemplated by law, and incidentally it is stated there that the intention of the legislature was that the executive officers should have an opportunity of acquainting themselves with the grievance made by the petitioner and redressing it, and, therefore, even if an appeal was presented to the officer beyond the period of limitation, it may be read, although it may be subsequently rejected, and as Section 11 does not speak of an appeal being presented within time, it was not necessary at least for the purpose of the maintainability of the suit that the appeal should have been within the period of limitation. The point is thus put pithily in the judgment (p. 588):
Here an appeal was so allowed: it was presented : the fact that the Commissioner subsequently rejected it as time-barred should not annul the right entertainment of the suit by the Civil Court.
6. Now, this decision implies that but for the appeal being time-barred, it was properly presented, and the question as to whether the appeal could be said to have been presented if it was not accompanied by a copy of the lower Court's order was not considered. Therefore, that decision also cannot be said to be a decision on the point to be decided here.
7. Now, Section 11 of the Bombay Revenue Jurisdiction Act states that the plaintiff must have presented all such appeals allowed by the law for the time being in force, and the procedure of presenting the appeals is the one provided by Section 204 read with Section 208 of the Bombay Land Revenue Code. If, therefore, a petition of appeal must be accompanied by the order appealed against, then I think it must be held that if the appeal is filed without such a copy, it is no presentation at all. Even on the reasoning adopted in the case of Ranchod v. Secretary of State for India the executive officer would have no opportunity to acquaint himself fully with the grievance of the appellant in such a case, because the memorandum of appeal, not being accompanied by the order appealed against, would not give that officer sufficient idea as to the facts of the case and the point involved in the appeal. Therefore, such a presentation, really speaking, would not be a presentation at all, and I think in this case we can usefully apply the analogous provisions in Order XLI, Rule 1, of the Civil Procedure Code, with the result that the provisions of Section 11 of the Bombay Revenue Jurisdiction Act are not complied with.
8. I may state here that Mr. Kelkar on behalf of the appellant has contended that there might have been an original decision made by the Deputy or the Assistant Collector against which the Collector might have been approached not by way of an original application but by way of an appeal, and therefore, there is no right of appeal to the Government, but the right may be only of a revisional petition under Section 211 of the Bombay Land Revenue Code. But, I think, reading the plaintiff's own statements in the plaint and his deposition, the original petition was to the Collector and not to any subordinate officer, with the result that the appeal before the Commissioner was not a second appeal but a first appeal, and therefore, the Governor in Council was to be approached by way of appeal under Section 204 and not revision under Section 211 of the Bombay Land Revenue Code.
9. The decree of the lower appellate Court is, therefore, confirmed and the appeal is dismissed with costs.