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Damodar Krishna Kulkarni Vs. the Collector of Nasik - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number First Appeal Nos. 69 to 77, 79 to 82 and 120 to 124 of 1918
Judge
Reported in(1920)22BOMLR99
AppellantDamodar Krishna Kulkarni
RespondentThe Collector of Nasik
DispositionAppeal dismissed
Excerpt:
.....prayers of the plaint, it would be perfectly clear that the suit did come within section 4 (a) of the bombay revenue jurisdiction act. 3 of 1917, it appeaas from the notice given to the defendant, and from the plaint, that the agreement which the plaintiff's complain of was not made by the plaintiffs but by the plaintiffs' grand-father......of the defendant, without taking into consideration plaintiffs' legal rights, and after using undue influence and coercion had compelled the plaintiffs to give consent to a commutation of their vatans against the plaintiffs' will; that according to the provisions of the vatan act no such transaction could take place; any such act, if done, was illegal, and, therefore, the plaintiffs were not bound by the said consent, nor were their rights affected thereby. the plaintiffs prayed that they be declared hereditary vatandar kulkarnis of the villages) of pimpalgaon, baswant and dehed, and that it might be declared that the plaintiffs were entitled to be vatandars and entitled to the vahivat of the said vatan hereditarily as before; and for an injunction restraining the defendant from.....
Judgment:

Norman Macleod, Kt., C.J.

1. This suit was filed by the plaintiffs alleging that they were the hereditary Kulkarni Vatandars, plaintiff No. 1 holding eight annas share and plaintiff No. 2 holding two annas eight pies share in the villages of Pimpalgaon, Baswant, of the Nasik District; that the Vahivat of the said Vatan had been carried on in their family hereditarily for a long time since the time of their ancestors; hence the plaintiffs had the right of carrying on the Vahivat; but notwithstanding this the Revenue Officers of the defendant, without taking into consideration plaintiffs' legal rights, and after using undue influence and coercion had compelled the plaintiffs to give consent to a commutation of their Vatans against the plaintiffs' will; that according to the provisions of the Vatan Act no such transaction could take place; any such act, if done, was illegal, and, therefore, the plaintiffs were not bound by the said consent, nor were their rights affected thereby. The plaintiffs prayed that they be declared hereditary Vatandar Kulkarnis of the villages) of Pimpalgaon, Baswant and Dehed, and that it might be declared that the plaintiffs were entitled to be Vatandars and entitled to the Vahivat of the said Vatan hereditarily as before; and for an injunction restraining the defendant from interfering with the Vahivat and enjoyment of the Vatan by the plaintiffs.

2. Notice had been given under Section 80 of the Civil Procedure Code to the defendant. The period of the notice expired on the 30th September 1917. Therefore the cause of action arose on the 30th September 1917 when the period of notice expired.

3. The plaint was rejected by the District Judge on the ground that the suit was barred under Section 4 (a) of the Bombay Revenue Jurisdiction Act of 1876 and on reading the prayers of the plaint, it would be perfectly clear that the suit did come within Section 4 (a) of the Bombay Revenue Jurisdiction Act. But it has been represented to us in first appeal that the plaintiffs were really claiming that the arrangement between them and the Revenue Officers should be set aside on the ground of undue influence and coercion. It was pointed out to the appellants' counsel that there was no prayer in the plaint asking to set aside the agreement, and so long as the agreement stood, it would be impossible for the plaintiffs to obtain the declaration they ask for in paras (a) and (b) of the prayers. It would not be possible to amend the plaint, because the plaint must correspond to the notice given under Section 80 of the Civil Procedure Code, the object of that notice being that the Secretary of State may have knowledge of the claim made against him.

4. It was admitted during the argument on other companion appeals that the pleadings were somewhat different, and that the agreement arrived at between the Government and the Kulkarnis is dated the 7th July 1914. Whether the period of limitation is one year under Article 14, or three years under Article 91, it was quite clear that if the plaintiffs had sued to set aside the agreement, the suit would have been barred by limitation, unless some plea had been raised in the plaint to avoid the bar. As regards this appeal and the companion appeals in which the plaintiffs pray merely for a declaration that they are hereditary Vatandar Kulkarnis, and that they were entitled to be Vatandars and entitled to the Vahivat of the said Vatan hereditarily as before, we are of opinion that the District Judge was right in rejecting the plaint. The appeals must be dismissed with costs.

5. In First Appeal No. 75 of 1918, Suit No. 3 of 1917, it appeaas from the notice given to the defendant, and from the plaint, that the agreement which the plaintiff's complain of was not made by the plaintiffs but by the plaintiffs' grand-father. They merely state in the plaint that they do not agree with the terms, but they are not able to allege that undue influence or coercion was employed in order to get their grand-father to sign the agreement. In any event they would be suing to set aside an order which was made on the agreement made by their grand-father, and it would not be open to them to set aside the agreement. Therefore the suit would come within Section 4 (a) of the Bombay Revenue Jurisdiction Act. Even if that Act did not apply, the suit again would be barred by limitation.

6. First Appeals Nos. 76 and 77 stand on a different footing. In both these cases the agreements which the plaintiffs object to were made between the plaintiffs themselves and the Government, and it was alleged that there was misrepresentation, undue influence and coercion, and that was alleged in the notice served under Section 80 of the Civil Procedure Code on the defendant. Apart from any-other questions, these plaints do not observe the rule of pleading laid down in Order VI, Rule 4, which enacts that ' in all cases in 1 which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.' That was enacted in order to prevent parties seeking to rely in their plaint on very vague allegations of misrepresentation, fraud, breach of trust, wilful default or undue influence. Then again it has to be admitted by the plaintiffs that the agreement which they seek to set aside was made on the 7th July 1914, whereas the plaints were presented on the 30th September 1917. Therefore it would be no use for us to sot aside the order of the District Judge rejecting the plaint on the ground that the suit was barred under Section 4 (a) of the Bombay Revenue Jurisdiction Act of 1876, as if the plaints were again presented, they would have to be rejected on the ground that on the facts set up in the pleadings and on the face of the plaints they were presented beyond the time prescribed by the Indian Limitation Act. All the appeals will, therefore, be dismissed with costs.


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