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Chhotubhai Govindji Desai Vs. the Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number First Appeal No. 44 of 1917
Judge
Reported in(1920)22BOMLR146; 55Ind.Cas.591
AppellantChhotubhai Govindji Desai
RespondentThe Secretary of State for India
DispositionAppeal dismissed
Excerpt:
.....the lands in dispute, but his claim was negatived by the collector under section 37 of the bombay land revenue code on the 16th july 1912. the plaintiff appealed against the collector's order, the last appeal having been decided on the 10th june 1913. the plaintiff sued, on the 6th april 1914, to recover possession of the lands:-;that the suit was barred under article 11 of the -indian limitation act, 1908, inasmuch as the collector's order having been passed before section 37 of the bombay land revenue code was amended by act xi of 1912, time began to run from the date of the order and not from the final order in appeal. - - but that argument has not been made good, and cannot be made good, on the record before us. having failed to do that, his suit was rightly dismissed as being..........collector's order is dated 16th july 1912, and purported to be made under section 37 of the bombay land revenue code. it does not appear that the collector had come to a conclusion that the land leased to the second defendant was alluvial land within the meaning of section 63 of the bombay land revenue code. under that section-when it appears to the collector that the occupancy of any alluvial land which vests, under any law for the time being in force, in government, may, with due regard to the interests of the public revenue, be disposed of in perpetuity, he shall offer the prior right of occupancy thereof to the occupant, if any, of the bank or shore on which such, alluvial land has formed...2. that is how the section ran in 1912. it has since been altered by act iv of 1913. it is.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff in this suit had been in possession off a piece of land measuring one acre and twenty-one gunthas on the bank of the Tapti river in the village of Katargam in the Surat District. He alleges that by reason of such occupancy he has by law and usage the right of access to the river and to the use of the water of the river, and has a right to the accretions by allusion, and that defendant No. 1 in derogation of his rights has leased out the land in suit for five years to defendant No. 2, and that the second defendant has put up a wire fence on or about the 24th May 1912 which prevented the plaintiff from exercising his rights, and has thus caused him a loss which he assessed at Rs. 100. The Collector's order is dated 16th July 1912, and purported to be made under Section 37 of the Bombay Land Revenue Code. It does not appear that the Collector had come to a conclusion that the land leased to the second defendant was alluvial land within the meaning of Section 63 of the Bombay Land Revenue Code. Under that section-

When it appears to the Collector that the occupancy of any alluvial land which vests, under any law for the time being in force, in Government, may, with due regard to the interests of the public revenue, be disposed of in perpetuity, he shall offer the prior right of occupancy thereof to the occupant, if any, of the bank or shore on which such, alluvial land has formed...

2. That is how the section ran in 1912. It has since been altered by Act IV of 1913. It is evident from the written statement that the Collector considered that the land in question was part of the river bed and was fit for cultivation when it was not covered by water, and that it had been let out from time to time as such land. It seems obvious, therefore, that any claim that the plaintiff as occupant of land on the river bank had under Section 63 to have alluvial land offered to him never arose, and he could have no cause of action against the first defendant for letting out the land in the river bed to another party. But it is also' clear that the plaintiff, if he had any cause of action, was bound to set aside the order of the 16th July 1912, and under Article 14 of the Indian Limitation Act, he was bound to file that suit within one year. The order of the 16th July 1912 was passed before Act XI of 1912 came into force, and, under Section 11 of the , Bombay Revenue Jurisdiction Act it is quite clear that time must be held, as was held in another case quite recently, to run from the date of the order by the Collector, and not from the date of the final order which was made by the Governor in Council on the 16th June 1913. I think, therefore, that the appeal must be dismissed with costs.

Heaton, J.

3. I agree. It is quite plain from the plaint in this case that what the plaintiff complains of is the act or order, whichever it may be, of the Collector, of the 16th July 1912. If that act or order was correct, the plaintiff has no cause of action. If it was not correct, yet it was an act or order which requires to be set aside to enable the plaintiff to obtain relief. It was argued that it was ultra vires. But that argument has not been made good, and cannot be made good, on the record before us. Therefore the plaintiff only had twelve months from the 16th July 1912 within which to bring his suit. Having failed to do that, his suit was rightly dismissed as being beyond time.


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