1. The suit, from which this appeal arises, was filed by the plaintiff-appellant to recover from the defendant-respondent possession of the suit property. The property in suit consists of two fields bearing Reg. S. Nos. 249 and 250 situate at Nagardevle in the East Khandesh District.
The plaintiff's case is that the suit lands are his ancestral property, that his ancestors were in possession of them since before the British Rule and that on 13-11-1946, the defendant wrongfully dispossessed the plaintiff in respect of the suit lands, which had then standing crops upon them. The plaintiff's contention is that an order of the Collector dated 17-12-1939, in pursuance of which the defendant took possession, was illegal and ultra vires.
2. There was also an alternative claim by the plaintiff on the footing that he was a tenant and that he was entitled to the protection afforded by the Bombay Tenancy Act, 1939.
3. The plaintiff's suit was resisted by the defendant on several grounds. It was contended that the present suit was barred by res judi-cata in view of the decision in suit No. 88 of 1942, that the suit was barred under the Bombay Revenue Jurisdiction Act, that the suit was not in time and that the suit was not maintainable in view of the provisions contained in the Provincial Insolvency Act.
4. The learned trial Judge dismissed the plaintiff's suit. From the decree made in the suit, the plaintiff has come up in appeal.
5. Mr. Samant for the appellant contends that the court below was wrong in holding that the suit was barred by the rule of res judicata. Suit No. 88 of 1942 was filed by the present plaintiff against the Province of Bombay, defendant 1 and the present defendant as defendant 2 The court raised several issues as many as 8 in number.
But issue No. 8 was tried as a preliminary issue and that issue was whether the plaintiff has 'status quo' to maintain the suit in view of the appointment of a Receiver in an insolvency proceeding. The learned trial Judge then held that plaintiff had no status quo to maintain the suit and upon that ground the plaintiff's suit came to be dismissed.
6. It is to be borne in mind that although several issues were raised in that suit, the Court did not record findings upon issues Nos. 1 to 7. Issues Nos. 2 and 5 were respectively in relation to the order made by the Collector and the suit being barred under Section 4(a), Bombay Revenue Jurisdiction Act and in that suit no findings were recorded by the Court.
It is clear, therefore, that so far as these two issues are concerned, it cannot be said that the present claim of the plaintiff would be barred.
7. There are, however, two other contentions which remain to be examined. One of them is based upon the proceeding following the insolvency of the plaintiff. The facts in connection with the plaintiff's insolvency are these. An order of adjudication was made on 28-11-1937 whereby the plaintiff was declared as an insolvent.
It appears that there was a composition scheme on 20-11-1946 and upon the basis of this composition Mr. Samant argues that although the Court did not in fact annul the order of adjudication, the result of the composition scheme has the effect of annulling the order of adjudication. Section 39, Provincial Insolvency Act provides, so far as it is material, that if the Court approves the proposal for the composition, its terms shall be embodied in an order of the court, the order of adjudication shall be annulled and the provisions of Section 37 shall apply.
In this case although the court gave sanction to the composition, there was admittedly no order made by the Court annulling the order of adjudication. Section 39 expressly provides that the Court has to make an order annulling the order of adjudication and that provision is manda-tory. If, therefore, Section 39 is not complied with and the Court did not make an order annulling the order of adjudication, it is clear that Section 37 will not apply.
And if Section 37 does not apply, it is obvious that the plaintiff's insolvency continued.
That is the view taken by the Court below and we think that in the absence of an order annulling the order of adjudication made by the Insolvency Court, the plaintiff had no right to maintain the suit.
8. Mr. Samant has also argued that the suit is not barred under Section 4(a), Bombay Revenue Jurisdiction Act. If the order made by the Collector is 'ultra vires', then it is arguable that there would be no bar under Section 4 (a), Bombay Revenue Jurisdiction Act. But the Supreme Court has taken the view in the case of -- 'Bhujangrao Daulatrao v. Malojirao' : 1SCR402 , that even if the order is 'ultra vires', the suit would be attracted by the pro-visions of Section 4 (a), Bombay Revenue Jurisdiction Act.
Mr. Samant argues that this is a suit in which Government is not a party, and therefore the bar imposed by Section 4(a) will not apply. Now, the defence based upon Section 4 (a) is a defence open to Government and perhaps Mr. Samant may be right. But it is unnecessary to determine the question finally, because in our view the present suit is not maintainable in the absence of an order of adjudication having not been annulled by the Insolvency Court.
9. Mr. Samant has also argued that the plaintiff being a tenant is protected by the Bombay Tenancy Act, 1939. In this connection he points out that the plaintiff was a tenant as the record in the suit shows. Now, the plaintiff's claim was upon the basis of his being the owner of the property. If the plaintiff is the owner of the property, it is impossible to conceive that the plaintiff would be a tenant in respect of the same property. But in this instance, the Collector has made an order under Section 9(2), Watan Act.
It may well be that by virtue of the provision the plaintiff considered himself to be a tenant. But the final order made by the Collector is an order made under Section 9(1), Watan Act. And if the plaintiff is the owner of the property, it is not possible to accede to the contention that the plaintiff is a tenant in respect of the very same property.
10. In our view, therefore, the decision of the Court below is right and the decree of the lower Court is confirmed. The appeal, therefore fails and is dismissed with costs.
11. Appea dismissed.