1. In 1903, the plaintiff applied to the Collector for a grant of the occupancy of Survey Nos. 46 and 47 in the village of Ajanti. The occupancy was accordingly granted to him on payment of Rs. 99, being three times the annual assessment. The grant was made on what is popularly known as 'the restricted tenure ', certain conditions being annexed prohibiting, alienation as permitted by Section 68 of the Bombay Land Revenne Code. The relevant words of the Kabulayat are as follows
Neither I, nor my heirs nor any agent acting on my behalf will create any encumbrance on the land or any portion of it by way of lease, mortgage or sale or in any other manner.
2. On August 9th, 1915, the plaintiff made an application to the District Deputy Collector in which he stated that the two lands were taken up jointly by himself and defendant No. 2, and prayed that Survey No. 46 might be transferred to the came of defendant No. 2. On August 21, 1915, the statement of defendant No. 2 was recorded by the Mamledar. He said that he had paid the price of Survey No. 43, and prayed that it should be transferred to his name. On November 3rd, 1915, the District Deputy Collector held that there was a private arrangement between plaintiff and defendant No. 2 which constituted a breach of the conditions set out above and directed that the lands should be forfeited. In pursuance of this order plaintiff was evicted on January 18th, 1916 and on February 7th, 1916 the Collector rejected the appeal made to him. The suit was filed on February 6th, 1917.
3. There is no dispute as to the above facts. It may be remarked that if there was in fact a breach of the conditions of the Kabulayat plaintiff would cease to be entitled to the occupation of the land as provided for by Section 68 of the Bombay Land Revenue Code and would, therefore, be liable to be summarily evicted by the Collector in exercise of the powers conferred by Section 79A. It is also clear that by virtue of Section 10 the District Deputy Collector was empowered in this behalf. It may further be remarked that the use of the word 'forfeiture ' in the District Deputy Collector's order is erroneous, but this is a matter of form only. What was in effect done was to evict the plaintiff summarily.
4. The only question of fact which is obscure is what was the exact nature of the arrangement between plaintiff and defendant No. 2. The lower Court holds that there was no agreement prior in date to the Kabulayat and that is probably correct. The lapse of eleven years renders this unlikely and the evidence of defendant No. 2 on the point is vague and unsatisfactory. He says: ' I do not remember if I and Vanji paid half and half the amount that was first paid to Government.... I asked Vanji after he got the lands to give me S. No. 46 and he consented '. The truth of the matter appears to be that defendant No. 2 from time to time advanced money to plaintiff for expenses of cultivation (the lands were originally waste) and that latterly they arranged for the transfer of one of the lands. It may be noted that this was apparently the case for defendant No. 1 in the lower Court. In Exhibit 17-the pursis of the Government Pleader-it is said 'plaintiff has broken the conditions inasmuch as he has alienated S. No. 46 to defendant 2 '. There is no evidence that any money was paid as purchase money and admittedly no document was executed. In these circumstances it is difficult of State to understand in what way there has been a breach of the Condition of the Kabulayat. There was at most a contract for sale which of itself creates no interest in or charge on the property. Plaintiff and defendant No. 2 appear to have made false representations to the Revenue Authorities in the hope of inducing them to sanction the transfer but this can furnish no valid ground for the order of eviction. Beyond this there was nothing more than an attempt or intention to transfer which was never carried into effect. It may, however, be remarked that if there was indeed an antecedent arrangement such as was suggested by plaintiff and defendant No. 2 the case for applying b. 79A would be no stronger. The action taken was (in my opinion) premature, and not warranted by the terms of that section. The eviction was therefore wrongful.
5. But it has been urged in appeal that the suit is barred by limitation. The point was not taken in the lower Court, and it is urged that Order VIII, Rule 2, of the Code of Civil Procedure & precludes us from considering the point. That order cannot, I think, be read as overriding the established practice. This is a first appeal and the general rule is that effect should be given to a plea of limitation raised for the first time. It may further be noted that the facts necessary for the consideration of this plea are in substance set out in the plaint itself, which shows that the suit was filed more than a year after the date of the actual eviction. Thus it may be doubted whether, on a strict construction of Order VIII, Rull 2 it was necessary for defendant No. 1 to plead limitation (see the words 'or would raise issues of fact not arising out of the plaint ').
6. It is argued for defendant No. 1 that the suit is barred by Article 14 of Schedule I of the Indian Limitation Act. The act of eviction, it is urged, was the act of an officer of Government in his official capacity, and as the suit was admittedly brought more than a year after the date of that act it must be held to be barred. The exact scope of Article 14 is a question not freo from A difficulty but I am unable to find any ground on which this case can be distinguished from Surannanna v. Secretary of State for India I.L.R. (1900) Bom. 435. In that case it was held that if a Collector disposed of land, the property of a private individual, purporting to act under Section 37 of the Bombay Land Revenue Code, the disposition is a nullity because Section 37 does not give power to deal with the lands of private individuals. The order is in fact not one made by a public officer in his official capacity. It would appear to follow that the act of dispossession is equally a nullity-not in the sense that it is a negligible quantity but in the sense that it is not an act done by an officer in his official capacity. It, therefore, stands on no other footing than an act of dispossession by a private individual. The basic defect is that what is done is not within the statutory powers which the officer purports to exercise inasmuch as the land does not fall within that category to which alone Section 37 is applicable. In the present case as the conditions necessary for the exercise of the power of summary eviction conferred by Section 79A did not in fact exist the District Deputy Collector cannot be held to have acted in his official capacity. In Malkajeppa v. Secretary of State for India I.L.R.(1911) Bom. 325 : 14 Bom. L.R. 332 the same line of reasoning is adopted. That also was a case under Section 37. The District Deputy Collector held erroneously that the plaintiff was not entitled to the possession of certain land, and the suit was filed more than a year after the order. It was held that the order gave the plaintiff a cause of action, but that as it was based on an erroneous view of the facts it was ultra vires. The District Deputy Collector did not, therefore, act in his official capacity and Article 14 had no application. It seems to me impossible to escape the conclusion that here too by parity of reasoning the act was not done by the District Deputy Collector in his official capacity. The same principle is laid down in Maharaja of Vizianagaram v. Satrucherla Somasekara Raju I.L.R. (1906) Mad. 280. Where an officer of Government purports to act under a statutory authority but in fact acts in excess of that authority his act should be treated as a nullity. It is perhaps simpler to say that the act is not an official act for that view brings out more clearly the reason why Article 14 is no bar. This appears to be the view hitherto taken by this Court, and no valid ground is shown for questioning it. It would appear to follow that Article 14 has no application here. It is not disputed that the suit is otherwise in time.
7. I would, therefore, reverse the decree of the lower Court and make a decree for possession and mesne profits under Order XX, Rule 12, of the Civil Procedure Code. Possession to be given three months after the receipt of the record in the lower Court. Plaintiff to recover his costs throughout.
8. I concur. I desire to add a word with reference to the point of limitation raised on behalf of defendant No. 1 for the first time in the appeal before us. In view of the allegation in the plaint, according to the provisions of Order VIII, Rule 2, limitation ought to have been pleaded. No such point was made in the written statement which was practically confined to the point as to the breach of the conditions of the grant. It is a point, which, if not raised, is likely to take the opposite party by surprise. The effect of the omission to raise this point is, as stated by Buckley L.J. in In re Robinson's Settlement Gant v. Hobbs, (1912) 1 Ch. 717 with reference to the corresponding English rule, not to exclude from the consideration of the Court the relevant subject-matter for decision simply on the ground that it is not pleaded, but to leave the party in mercy and the Court will deal with him as is just. Having regard to the nature of the point, as also to the circumstance that it involves no investigation into any fresh facts, we have considered the point of limitation. It seems to me that the real question in the case is whether any breach of the conditions of the grant is established; for if that is not established under the circumstances of this case the defendant No. 1 must fail on the merits as well as on the point of limitation. That was probably the reason why the point of limitation was not separately raised in the lower Court. Both on the question of fact as to the alleged breach of the conditions of the grant, and on the question of law as to the effect of that finding on the point of limitation I entirely agree with my learned brother.