J.M. Shelat, J.
1. His Lordship after narrating the facts proceeded. Mr. Shah who appears for the plaintiff has challenged the order of dismissal of the plaintiff's suit by the Trial Court and the learned Assistant Judge. His first contention was that the finding by the Courts below that the suit was barred both under Section 11 of the Bombay Revenue Jurisdiction Act and under Section 37(3) of the Bombay Land Revenue Code was erroneous and was not justified in law. He submitted that the suit filed by the plaintiff was in fact in time as it was filed on the 22nd of June 1953 i.e. within one year from the 28th April 1952 that being the date of the order of dismissal of the plaintiffs appeal by the Bombay Revenue Tribunal which is the final appellate authority That contention in my view cannot be sustained.
2. The suit in substance was to set aside the order passed by the Mamlatdar and subsequently confirmed by the superior revenue authorities. Though in the plaint it was said that the suit was for a declaration that the land in question was of the plaintiffs ownership and there was a prayer for a perpetual injunction restraining the State of Bombay from interfering was his possession that declaration was sought on the footing that the order passed by the Mamlatdar and subsequently consumed by the other revenue authorities was illegal and should be set aside. Article 14 of the Limitation Act would, therefore seem to apply. Under that Article the period of Limitation prescribed is one year from the date of the order sought to be set side. If Article 14 of the Limitation Act were to apply then the question would be, which is the order from the date of which the limitation for one year is to commence under Article 14. Section 37(3) of the Bombay Land Revenue Code which is a special statute laying down the period of limitation in respect of such orders provides that any suit instituted in any Civil Court after the expiration of one year from the date of any order passed under Sub-section (1) or subsection (2) or if one or more appeals have been filed against such order within the period of limitation then from the date of any order passed by the final appellate authority as determined according to Section 204 shall be dismissed if the suit is brought to set aside such an order or if the relief claimed is inconsistent with such an order provided that in the case of an order under sub-section (2) the plaintiff has had due notice of such order. It is therefore immaterial whether the plaintiff in the suit has claimed declaration as regards his ownership of the land in question or whether the suit is for setting aside the order passed by the Mamlatdar. So long as the relief claimed in the suit is in consistent with the order passed by the Mamlatdar Sub-section (3) of Section 37 of the Land Revenue Code would apply and therefore the period prescribed by this sub-section viz. one year from the date of the order of the final appellate authority must apply to such a suit. If therefore a suit is instituted in a Civil Court after the expiry of one year from the date of the order of such final appellate authority such a suit is liable to be dismissed under provisions of Section 37(3). It is not disputed that the final appellate authority as contemplated in Section 37(3) is the Revenue Tribunal. Under Sections 203 and 204 of the Land Revenue Code an appeal from an order of a Mamlatdar first lies to the Prant Officer and thereafter to the Collector and then to the Revenue Tribunal. As I have stated the plaintiff filed an appeal before the Prant Officer and having failed there he straightway filed an appeal before the Revenue Tribunal who rejected the same on the ground that the plaintiff ought to have preferred an appeal before the Collector before he launched his appeal before the Revenue Tribunal. Since no appeal can lie to the Tribunal directly from the order of a Prant Officer there was no valid appeal before the Revenue Tribunal within the meaning of the Bombay Land Revenue Code. It was therefore rightly rejected by the Tribunal. That being the position and there being no valid appeal against the order of the Prant Officer the final order was the one passed by the Prant Officer dismissing the Plaintiffs appeal and confirming the order passed by the Mamlatdar. That was dated the 27th of March 1952. The present suit having been instituted on the 22 of June 1953 it was undoubtedly filed after more than a year from the date of the order of the Prant Officer and therefore it was time barred under Sub-section (3) of Section 37 of the Code.
3. Section 11 of the Bombay Revenue Jurisdiction Act, 1876 provides that no Civil Court shall entertain any suit against Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that previously to bringing his suit he had presented all such appeals allowed by the law for the time being in force as within the period of limitation allowed for bringing such a suit it was possible to present. It has been held on more than one occasion that the words 'act or omission of any Revenue Officer' would include an order passed by the Mamlatdar or any other Revenue Officer under the provisions of the Land Revenue Code. Section 11 of this Act enjoins that all appeals that could be filed before the superior officers or tribunals within the limitation prescribed for the suit must be filed and if they are not filed the suit would be barred. Of course if the order of the Revenue Officer is ultra vires or invalid a plaintiff is not bound to appeal under Section 203 of the Code and it would be open to him to bring a suit directly without filing any appeal. That is because such an order is a nullity and cannot give rise to any right whatsoever even a right of an appeal and therefore Section 11 of the Revenue Jurisdiction Act would not apply in case of such an order. 3Jut then all incorrect orders are not necessarily ultra vires or invalid and in such case Section 11 of the Revenue Jurisdiction Act would apply. There can be no doubt that the order passed by the Mamlatdar in the present case has been passed under the provisions of Section 37(2) of the Code and though it was pleaded by the plaintiff in his plaint that the land in question belonged to him it was never his case either in the Trial Court or in the first appellate Court that the order passed by the Mamlatdar was ultra vires or invalid. Section 11 of the Revenue Jurisdiction Act therefore must apply to the present case.
4. Under Section 11 the plaintiff must exhaust all appeals available to him within the period prescribed therein before he can take recourse to a civil suit to challenge an order passed by the Revenue-Officer. The question as to the construction of Section 11 arose in Ganesh Shesho Deshpande v. The Secretary of State for India 22 Bom.L.R. 212, where Macleod C.J. and Heaton J. held that if the plaintiff wished to have a decision of the court upon the legality or illegality of an order of forfeiture passed by the Collector he was bound to put his plaint on the file within one year of the date of the order. In that case certain land belonging to the plaintiff was forfeited by an order dated May 6 1911 after which he applied first to the Collector and then to the Commissioner to set aside the order. Eventually he filed a suit on Oct. 14 1915 for a declaration that the proceedings held by the Revenue authorities in respect of forfeiture were illegal and ultra vires. It was held that since the suit was filed after the expiry of one year from the date of the order both under Article 14 of the Limitation Act and under Section 11 of the Revenue Jurisdiction Act the suit was barred. It is thus clear that the present suit was barred by virtue of Section 11 of the Revenue Jurisdiction Act and Section 37(3) of the Code.
5. Mr. Shah for the appellant however relied upon Malikajeppa v. Secretary of State for Indian Council I.L.R. 36 Bombay 325 where it was held that Article 14 of the Limitation Act would only apply to orders passed by a Government officer in his official capacity, and that article did not apply to orders which are ultra vires of the officer passing them. There it was held that when a Revenue Officer passes an order under Section 37 of the Bombay Land Revenue Code which reference to land which is prima facie the property of an individual who has been in peaceful possession thereof and not of Government he is not dealing with that land in his official capacity but is acting ultra vires. Sub-section (1) of Section 37 in clear terms provides that a Collector has the power to dispose of lands which are declared thereunder the property of the Government subject of course, to the orders of the Commissioner and the general rules sanctioned by Government and subject always to the right of way and all other rights of the public or of individuals legally subsisting. The power of the Collector under Sub-section (1) of Section 37 being limited to such lands and property only an order passed by the Collector under Section 57(1) in respect of properties which do not fall under the subsection but which are of the ownership of private individuals cannot be an order passed under that sub-section nor can it be said to be an order passed by the Collector in his official capacity. His power to dispose of such lands being limited only to such lands or properties declared by that sub-section to be belonging to Government an order passed by him in respect of properties belonging to the private individuals would consequently be an order outside the scope of Sub-section (1) of Section 37 and therefore ultra vires of him. But the decision in the case of Malikajeppa v. Secretary of State for India in Council was given in November 1911. In 1912 Section 37 was amended and Sub-sections (2) and (3) were added by the Bombay Land Revenue Code (Amendment) Act 1912 belong Bombay Act No. XI of 1912. Under Sub-section (9) it is provided that where any property or any right in or over any property is claimed by or on behalf of Government it shall be lawful for the Collector or a Survey Officer after a formal inquiry of which due notice has been given to pass an order deciding the claim. Thus whereas Sub-section (1) of Section 37 confers power upon the Collector subject to certain restrictions thereunder provided to dispose of lands which are declared to be the lands belonging to Government thereunder Sub-section (2) confers upon the Collector an additional power to pass an order deciding a claim where property or a right therein or over it is claimed either by Government or by any person as against Government. The words pass an order deciding the claim themselves contemplate an adjudication by the Collector of a dispute in regard to land in respect of which either Government makes a claim or an individual person makes such a claim. Sub-section (2) therefore enjoins upon the Collector to hold a formal inquiry of which due notice has to be given to the person concerned and thereafter to pass an order deciding the claim. The very provisions of Sub-section (2) of Section 37 thus contemplate an inquiry in respect of land over which either Government makes a claim or a private individual makes such a claim. The decision in I.L.R. 36 Bombay 325 would have no application to the facts of the present suit. It cannot therefore be said that the order in question was passed without jurisdiction or was in any sense ultra vires.
6. After the Mamlatdar passed his order he issued a notice to the plaintiff Ex. 8 dated the 2nd of March 1951 wherein it was stated that if the plaintiff was aggrieved by the order made by him he had two alternatives (1) to file an appeal within 60 days from the date of the order before the Prant Officer and thereafter to the officer superior to the Prant Officer or (2) he could file a suit in a Civil Court within one year from the date of the order without filing any appeal against it notwithstanding the provisions of Section 11 of the Revenue Jurisdiction Act. It was contended by Mr. Shah that the second alternative suggested in this case was contrary to the express provisions of Section 11 of the Revenue Jurisdiction Act inviting the plaintiff to file straightway a suit in a Civil Court without having recourse to appeals provided for under that section and that the suggestion in that alternative was such that it was likely to mislead and did in fact mislead the plaintiff resulting in the plaintiff not having filed an appeal before the Collector and going directly before the Revenue Tribunal. Such an alternative was also contrary to the provisions of Sections 203 and 204 of the Land Revenue Code under which by virtue of Section 11 of the Revenue Jurisdiction Act the plaintiff would have to file an appeal first before the Prant Officer then before the Collector and thereafter before the Revenue Tribunal. So far as the first alternative suggested in the notice is concerned Mr. Shah could not take any exception. As regards the second alternative also it cannot be rightly said that it had in any way misled the plaintiff though the alternative suggested to the plaintiff was that he could straightway life a civil suit without filing any appeals. The plaintiff had in fact filed an appeal first before the Prant Officer and thereafter before the Bombay Revenue Tribunal. It cannot therefore be said that the notice (Ex. 8) in any manner had misled the plaintiff as suggested by Mr. Shah.
7. Mr. Shah relied upon the decision in the Secretary of State v. Husenabu Daudhai 33 Bom. L.R. 361 where it was held that on the facts before the court and having regard to the terms of the notice in that case Government was not entitled to rely upon the bar under Section 11 of the Revenue Jurisdiction Act. The facts there were that the City Survey Officer at Dahod decided that a certain plot of land belonged to Government and not to the plaintiffs and communicated that decision to the plaintiffs by a notice one of the clauses of which ran as follows:
If any person desires to appeal against the above-mentioned order he should appeal in the prescribed manner to the Collector within 60 days from the date of the said order.
8. Within the period so prescribed plaintiffs appealed against the order but the appeal was dismissed by the District Deputy Collector. Without presenting any further appeal the plaintiffs filed a suit to obtain a declaration against Government that the land was of their ownership. It was objected that the suit was barred under Section 11 of the Bombay Revenue Jurisdiction Act. The High Court held that in view of the fact that the City Survey Officer not having been a direct subordinate of the Collector an appeal would lie to the Collector under notification No. 14447 of Nov. 29 1927 and that it did not appear that any further appeal to the Commissioner was necessary to be filed and further that having regard to the terms of the notice in the case. Government was not entitled to rely on the bar under Section 11 of the Revenue Jurisdiction Act. Relying upon certain unreported judgments of the High Court it was observed that such a notice having misled the parties in not filing the appeal against the order the Government was not entitled to rely upon the provisions of Section 11 as bar to the plaintiffs suit. The facts in this case were different from the ones before me. As an I have pointed out the notice cannot be said to be one which misled the plaintiff. The observations therefore in 33 Bom. L.R. 361 that the Government was not entitled to rely upon the bar under Section 11 cannot apply in this case. Contrary to the advice contained in the notice the plaintiff after filing an appeal before the Prant Officer straightway lodged an appeal before the Bombay Revenue Tribunal without having recourse first to appeal before the Collector. By adoption of these proceedings much time was wasted and the cause of action which the plaintiff had against the State of Bombay was allowed to be time-barred under Sub-section (3) of Section 37 of the Land Revenue Code. In my, view therefore, there is no substance in the contention of Mr. Shah that the notice had in way misled the plaintiff or that Government therefore was not entitled to rely upon Section 11 of the Revenue Jurisdiction Act. Mr. Shah next sought to argue that the power to pass an order deciding a claim under Section 37(2) was conferred by the legislature upon the Mamlatdar had no competence to pass the order in question under subsection (2) of Section 37 Consequently the order passed by the Mamlatdar was ultra vires and illegal and could be challenged by the plaintiff in a court of law without Section 11 of the Revenue Jurisdiction Act applying and without the plaintiff having had recourse to the appeals referred to is that section. The allegation that the Mamlatdar had no power under Section 37(2) of the Land Revenue Code to decide the claim by or on behalf of Government or by the plaintiff was not taken in the plaint nor was such contention raised either in the Trial Court or before the learned Assistant Judge. It would not therefore be proper to allow Mr. Shah to raise such a contention for the first time in second appeal denying thereby the opportunity to the other side to give an answer or an explanation. But the difficulty In the way of that contention is that Section 12 of the Code expressly provides that the duties and powers of a Mamlatdar shall be such as may be expressly imposed or conferred upon him by the Code or by any other law for the time being in force or as may be imposed upon or delegated to him by the Collector under the general or special orders of the State Government. By Notification No. G.R.D. 3237/45 of October 29 1948 powers under Section 37(2) of the Code have been delegated to the Mamlatdars. Therefore there is no validity in the contention that the order passed by the Mamlatdar in this case was either without jurisdiction or ultra vires.
9. But then Mr. Shah contended that the powers so conferred are only with regard to the Mamlatdar taking steps for removal of encroachment on Government lands. He argued that that meant that there was no delegation of power to the Mamlatdar under Section 37(2) to hold an inquiry and to pass an order deciding the claim. In my view there is no force in this contention also. When the notification delegates powers under Section 37(2) to the Mamlatdar to take steps for removal of encroachment on Government lands the steps contemplated under the notification and which the Mamlatdar is to take are steps to be taken in accordance with Sub-section (2) of Section 37. If any steps under this notification are to be taken for the purpose of removing an encroachment on lands belonging to Government those steps must be taken in accordance with the provisions of Sub-section (2) of Section 37 one of the steps for removal of such an encroachment being to pass an order whereby the Mamlatdar would have to decide the claim made either by Government or an individual. Such a claim cannot be decided by the Mamlatdar without following the procedure laid down in that sub-section. A proceeding contemplated by the sub-section is the passing of an order deciding claim after a formal inquiry. Therefore when the notification uses the words 'to take steps for removal of encroachment on Government land those words must mean and include the passing of an order on a claim after an inquiry as stated in Sub-section (2). It is difficult to make any substantial distinction between the powers of the Mamlatdar to pass an order deciding a claim after a formal inquiry and the power delegated to him under the notification dated the 29th of October 1948 to take steps for removal of encroachment on Government lands. It is thus not possible to sustain the contention that the delegation of power under the notification was a restricted one or that therefore the order passed by the Mamlatdar was ultra vires or beyond the scope of Section 37(2) of the Code.