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Bhavanishankar Bhaishankar Vyas Vs. the Talukdari Settlement Officer - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 84 of 1913
Judge
Reported in(1914)16BOMLR766
AppellantBhavanishankar Bhaishankar Vyas
RespondentThe Talukdari Settlement Officer
DispositionSuit dismissed
Excerpt:
.....settlement officer-gujrat tulukdars act (bom. act vi of 1888), section 33(2)(cc) land revenue code (bom. act v of 1879), sections 79a, 202.;a notice was served upon the officer to evict him summarily plaintiff by the talukdari settlement from certain lands under section 33(2)(cc) of the gujarat talukdara act read with section 79 a of the land revenue code. the plaintiff sued (he officer to restrain him from doing so. no notice was given under section 80 of the civil procedure code. the first court hold that no notice was necessary, as the suit was for an injunction in respect of act to be done in the future. on appeal:- ;that want of notice under section 80 of the civil procedure code was fatal to the suit, inasmuch as the service of the notice which led tat to the suit..........a public officer in respect of an act purporting to be done by him in his official capacity, and therefore section 80 of the civil procedure code requires as a condition precedent to the institution of the suit a notice which has not been given. the suit must, therefore, be dismissed. each party should bear his own costs throughout.
Judgment:

Basil Scott, Kt., C.J.

1. We do not think it necessary in this case to call upon the learned pleader who appears for the Talukdari Settlement Officer in support of the judgment of the lower appellate Court, for, although, as at present advised, we think that the notification purporting to have been issued under Section 29 B of the Gujarat Talukdars Act was not a sufficient reference to the Talukdar-debtor and his property to extinguish the claim of the plaintiff, if the claim was not submitted under that section the plaintiff's suit must fail because he has not given notice as required under Section 80 of the Civil Procedure Code. The cause of action in the present case is the process initiated by the Talukdari Settlement Officer to enforce the eviction of the plaintiff from the property in question Section 79A of the Land Revenue Code provides that:-Any person unauthorisedly occupying, or wrongly in possession of any land, which he uses or occupies in contravention of any of the provisions of the Gujarat Talukdars Act of 1888 may be evicted summarily by the Collector. Then Section 202 of the same Code provides that:-' Whenever it is provided by this or by any other Act...that the Collector may or shall evict any person wrongfully in possession of land, such eviction shall be made in the following manner :-by serving a notice on the person or persons in possession, requiring them...to vacate, and if such notice is not obeyed, by removing...any person who may refuse to vacate.' Therefore, the service of the notice which has led to this suit is the first act in the process of eviction provided by Section 202 of the Land Revenue Code, and the suit being to restrain the accomplishment of the act of eviction is a suit against a public officer in respect of an act purporting to be done by him in his official capacity, and therefore Section 80 of the Civil Procedure Code requires as a condition precedent to the institution of the suit a notice which has not been given. The suit must, therefore, be dismissed. Each party should bear his own costs throughout.


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