(1) The suit from which these appeals arise instituted by the plaintiff-appellant in the Court of Assistant Judge, Porbandar, for a declaration that the order passed on 6th September, 1952, by the Assistant Collector, Porbandar, whereby the suit land admeasuring Acres 41-39 Gunthas came to be allotted to the defendants No. 2 and 3, who are respondents Nos. 2 and 3, is illegal and without jurisdiction and for a declaration that defendants Nos. 2 and 3 continued to be the tenants of the plaintiff in respect of those lands. The plaintiff alleged that on account of the political disturbances in village Hamadpara, where he lived and cultivated the suit lands in 1947, he like others had left that place and stayed at nearby village Kutiyana. The State of Junagadh came to be taken over by the Union of India in about November, 1947, and it later on came to be integrated to the United State of Saurashtra with effect from 20th January, 1949. While the State of Junagadh was under the administration of the Union of India under the provisions of the Extra Provincial Jurisdiction Act, 1947, the Circular, Ex. 33, dated 20th December, 1948, was issued by the Revenue Commissioner of Junagadh, directing the people to come back to their respective villages and resume their lands and till the same personally, failing which their lands would be sold by public auction by the Vahivatdar of Junagadh. The plaintiff-appellant did not turn up with the result that the suit lands which were occupied by him were ordered to be auctioned. From the proceedings, Ex. 15, in relation to the auction, it appears that the plaintiff turned up and made a request to the Vahivatdar of Kutiyana that he is willing to return back to the village. He also gave an assurance about his having purchased the bullocks and agricultural implements and on being satisfied in that respect, the Revenue Commissioner directed as per his order dated 6th May 1949 not to auction the suit lands but to return the same to the original occupant, namely the plaintiff, on condition that he should personally cultivate the same.
(2) In the meantime, the State of Junagadh, which was under the administration of the Union of India came to be integrated on 20th January 1949, to the United States of Saurashtra. Before that, however, the Bombay Land Revenue Code had come to be applied to the State of Junagadh, and the plaintiff became an occupant in respect of the suit lands under the Bombay Land Revenue Code. On 30th June, 1951, the plaintiff had given his lands to defendants Nos. 2 and 3 on lease. As a result of some applications made against him about his not personally cultivating the lands and the same having been given over to the tenants, namely defendants Nos. 2 and 3, an inquiry came to be started by the Assistant Collector, Junagadh, and after making necessary inquiry he found that the plaintiff was not personally cultivating the suit lands and that thereby he had violated the condition attached to the lands given over to him. On that basis, the suit lands came to be resumed and then given over to the defendants Nos. 2 and 3. Therefore, the plaintiff was obliged to file the present suit for having that order declared as illegal and void so as not to operate in respect of these lands.
(3) The defendant No. 1 - respondent No. 1 resisted the suit inter alia contending that the suit lands were handed over to the plaintiff on condition that he shall cultivate the same personally that he was found not to be cultivating the same personally, that he had therefore committed breach of that condition; that consequently the lands were liable to be made Khalsa under the provisions of the Revenue Code of the then State of Junagadh; that the State was consequently entitled to allot the said lands to any other person; that the order passed by the State was legal and valid; that the suit is barred by limitation; that the suit for a mere declaration was not maintainable; and that the suit should be dismissed with costs. The defendants Nos. 2 and 3- respondents Nos. 2 and 3 were ex parte. They have also not appeared in this Court.
(4) The trial Court raised the issues arising out of the pleadings of the parties, and in its opinion, the court-fees were properly paid; that the defendant State had a right to pass orders for the disposal of the suit lands as the plaintiff was not living at Hamadpara in Samvat year 2005 i.e. 1949 A.D. that the defendant State had a right to dispose of those lands and give them over to the plaintiff on certain conditions; that the order of allotment passed by the Assistant Collector in favour of defendants Nos 2 and 3 was not illegal and without jurisdiction; that the lease passed by the plaintiff in favour of the defendants Nos. 2 and 3 in respect of the suit lands was consequently not valid and unenforceable; and that since the plaintiff was not entitled to any relief sought for by him, the suit was dismissed with costs. The costs of the Assistant District Government Pleader was fixed at Rs. 250/-. Against that decision passed on 27th January 1959 by Mr. H.A. Yajnik, Assistant Judge, Porbandar, the plaintiff has come to appeal, which is First Appeal no. 395 of 1960.
(5) This very plaintiff -appellant had also preferred Civil Regular Appeal No. 32 of 1959 in the Court of District Judge, Sorath at Junagadh, against the decision in the same suit, and as the said appeal came to be summarily dismissed under Order 41, Rule 11(1) of the Code of Civil Procedure, by order dated 23rd March, 1959, passed by Mr. B.V. Trivedi District Judge at Junagadh, the plaintiff has come to this Court by way of Second appeal filed against that decision, which is Second Appeal No. 631 of 1960.
(6) A preliminary objection was raised by Mr. G.T. Nanavati the learned Assistant Government Pleader appearing for respondent No. 1, saying that since the claim is valued at Rs. 400/-, the decision passed in such a suit would be appealable to the Court of District Judge under Section 16 of the Saurashtra Ordinance No. 11 of 1948, and that the first appeal preferred to this Court against the decision of the learned Assistant Judge cannot lie. His remedy was by way of filing an appeal in the Court of the District Judge at Junagadh, which he had done, and that way, that second appeal can be heard as such by this Court. If that were so, since that appeal was disposed of by the learned District Judge summarily under Order 41, Rule 11 of Civil Procedure Code, without giving any reason, as recently held in Second Appeal No. 426 of 1960, Ismail Haji v. State of Bombay on 11th October 1965 = (reported in AIR 1966 Guj 264), it has to be remanded back to the District Court, for decision according to law.
(7) The question has, therefore, to be decided, as to whether the appeal can directly lie to the High Court from the decision of the learned Assistant Judge when the subject matter in the suit does not exceed Rs. 5000/- as contemplated in section 16 of the Ordinance. Mr. J.R. Nanavati, the learned advocate appearing for the appellant-plaintiff, on the other hand, contended that an Assistant Judge with powers vested on him under Section 19 of the Ordinance stands on a different footing from one appointed under Section 16, and such an Assistant Judge's Court becomes a Principal Court of original jurisdiction as that of a Dist. Judge for the specified area, and whether his jurisdiction is limited or not, the appeal would lie to the High Court. In order to appreciate the contention, the combined effect of the provisions relating to the powers and jurisdiction of the District Judges and Assistant Judges described in Part III and Part IV of the Ordinance (Saurashtra Ordinance No. 11/48) would have to be considered.
(8) Section 7 of the Ordinance refers to the District Court as the principal Court of original civil jurisdiction in the District within the meaning of the Code of Civil Procedure. S. 8 of the Ordinance refers to its appellate jurisdiction except as provided in Sections 16,17, and 26. Then coming to chapter V of the Ordinance, which relates to powers etc. Of an Assistant Judge, it would be necessary to set out section 16, as also section 19 thereof, as according to Mr. Nanavati, Section 16, in so far as it relates to appeals against the decrees and orders passed by the Assistant Judges are concerned, governs whether they act under S. 16, or under Section 19 of the Ordinance, and that would depend according to the amount or value of the subject matter in the suit. If it exceeds Rs. 5000/-, the appeal would lie to the District Judge. Section 16 of the Ordinance runs thus:-
'The District Judge may refer to any Assistant Judge subordinate to him original suits, applications or references under Special Acts, and miscellaneous applications not being of the nature of appeals.
The Assistant Judge shall have jurisdiction to try such suits and to dispose of such applications or references.
`Where the Assistant Judge's decree and orders in such cases are appealable, the appeal shall lie to the District Judge or to the High Court according as to the amount or value of the subject matter does not exceed or exceed five thousand rupees'.
Then Sections 17 and 18 of the Ordinance relate to appellate jurisdiction of the Assistant Judge, and with that, we are not concerned in this matter. Section 19 is very important, and it makes a certain departure from Section 19 of the Ordinance. It is common ground, that the learned Assistant Judge at Porbandar, who heard the suit, was invested with powers, contemplated under section 19 of the Ordinance, and the question, then is, whether for purposes of appeal against his decision, he is governed by Section 16. Section 19 runs thus:-
'The Government of Saurashtra may, by notification of the Official Gazette, invest an Assistant Judge with all or any of the powers of a District Judge within a particular part of a district, and may, by like notification, from time to time, determine and alter the limits of such part.
The jurisdiction of an Assistant Judge so invested shall pro tanto exclude the jurisdiction of the District Judge from within the said limits.
Every Assistant Judge so invested shall ordinarily hold his Court at such place within the limits of his jurisdiction as may be determined by the Government of Saurashtra, and may, with the previous sanction of the High Court, hold it at any other place within such limits.'
(9) To analyse section 16, it is clear that the Assistant Judge, exercising original jurisdiction, not invested with powers under Section 19 of the Ordinance, has to hear and decide such original matters as are referred to him, by the District Judge of the District. He has no independent jurisdiction over any particular or specified area, as against the Assistant Judge having been invested with powers under section 19 of the Ordinance. In the case of an Assistant Judge, acting under Section 19, no matters are to be referred to him by the District Judge, and secondly his territorial jurisdiction is separately determined, to an extent that, in that area, the jurisdiction of the District Judge is excluded. Another important distinguishing feature is that the Assistant Judge acting under Section 19, has the powers invested by Government, and these powers may be all or any of the powers of the District Judge in that area. He thus acts as a District Judge within his area. He becomes consequently the principal Court of original Civil Jurisdiction within limits assigned to him, and that way he exercises all powers of a District Judge for that area. The distinction arises as a result of specific powers invested on him by the Government and he does not decide matters referred to by the District Judge. It is this way, that if an appeal against the judgment or decree passed by the District Judge lies directly to the High Court, the appeal against the decree of an Assistant Judge of that area lies directly to the High Court. He is not controlled by section 16 of the Ordinance. If it were to control for proposes of appeal against his decision, according to the value of the subject matter in the suit there would have been a specific provision made in that section, or at any rate said that section 16 of the Ordinance would govern the same. Then the words 'in such cases' used the third part of section 16 are significant, and they apply to decrees and orders of the Assistant Judge in cases only referred to them by the District Judge and the latter part of section 16 governs such decrees and orders, and not those passed by the Assistant Judge appointed with specific powers under Section 19 in a specified area though within the District. Besides in section 8 of the Ordinance, which gives appellate jurisdiction to the District Court, from decrees and orders passed by Subordinate Courts, an exception is made in respect of decrees and orders passed by the Assistant Judges under Sections 16, 17 and 26 of the Ordinance. Section 16 gives jurisdiction to hear appeals, from the decrees or orders passed by Assistant Judges if the amount or value of the subject matter does not exceed Rs. 5000/-. It does not similarly include decrees and orders passed by Assistant Judges acting under section 19 of the Ordinance. Thus, the appeals, from orders passed by Assistant Judges, specially empowered under section 19 of the Ordinance, directly lie to the High Court as in case of decrees or orders of the District Judge and not to the District Judge as contemplated under Section 16 of the Ordinance. In Saurashtra, such Assistant Judges were directly empowered and appointed under Section 19 of the Ordinance, at Porbandar, Morvi and Gondal, and since this is a decision of the Assistant Judge of Porbandar, the appeal would directly lie to the High Court, even if the value of the subject matter in suit is less than Rs.5000/- viz. Rs. 400/- only in the present case. The second appeal would thus stand disposed of, and the first appeal is thus heard on merits.
(10) The material question that requires to be determined in this appeal is as to whether the lands in suit were validly resumed and put for sale in auction by the revenue authorities of the then State of Junagadh, which was governed by the Administrator, appointed on behalf of Union of India under the Extra Provincial Jurisdiction Act, 1947. The contention urged by Mr. J.R. Nanavaty, the learned advocate appearing for the appellant-plaintiff is that the lands in suit gives to the plaintiff were in his possession on the basis of his own rights as they existed, namely as 'Chav Khatedar' as defined in section 3 of the said Code. He held them, no doubt, subject to the provisions of the Revenue Code applicable in that area, and therefore those provisions have to be complied with before resuming the suit lands and putting for auction sale for giving over to any bidder. Since they were not complied with, it cannot be said that the lands were validly resumed, and consequently, any condition, subsequently imposed on him, cannot be valid. It is no doubt true that the lands in suit belonged to the State of Junagadh in view of section 33 of the Junagadh Revenue Code, and the plaintiff held the same as a Chav Khatedar as contemplated in the definition of 'Khatedar' given in section 3 of the said Code. He held them subject to the provisions of the Junagadh Revenue Code. Section 69 of the Code puts certain restrictions on him for continuing to hold such lands. The first is that he shall continue to pay the assessment in respect of the said lands according to the rules and regulations made in respect thereof. The second condition contemplated therein is that he shall continue to cultivate personally, and have his own bullocks and the agricultural implements for producing better yields in the lands. The third condition relates to the period provided for allowing to hold the lands and if that period is over, the State is entitled to resume or take back the lands from him. Section 76 of the Code then provides for the right of transfer of the property under certain circumstances and section 78 of the Code provides for the rights of successors of a Khatedar to such lands. Then comes Schedule `F'. That was introduced with a view to regularising the rights of the occupants of such lands and to see at the same time that the occupants cultivate the land personally and produce better yield and pay the assessment to the Government. Clauses (a), (b) and (c) of Schedule 'F' provide for certain penalties, if the land is not cultivated personally or that the occupant does not produce any crop etc. If he commits any breach as stated therein, it would be tolerated for a period of two years. If he continues to so act, as contemplated in clause (c) of the said Schedule, he would be served with one year's notice and yet if he does not comply with any of the conditions contained in clauses (a), (b), and (c) during the period of the notice, that land would be taken away from him and follows, therefrom that the right to take over the lands and then auction away the same would depend upon the conditions referred to herein above and not in the manner sought to be done in the present case.
(11) It is no doubt true that some people of Hamidpara had left that village on account of political upheaval which took place towards the end of the year 1947 and it continued for some time. The administration of the then Junagadh State was taken over by the Union Government of India under the Extra Provincial Jurisdiction Act in November 1947. The plaintiff had left his place of residence during that time and gone to Kutiyana, which is said to be a mile or so away therefrom. It appears that various lands in that area were given away to some other persons for cultivation for a period of one year as people had left their places during that period of upheaval in that area. It is, however, not clear whether the suit lands were given over to any particular person as the plaintiff had left. It appears that the Revenue Commissioner issued a circular Ex. 33, dated 20th December, 1948, informing people who had left their villages and lands to return and take over their lands for cultivation on or before 1st February 1949. That circular further says that in case the occupants do not return back for cultivating their lands, auction in respect of those lands would be held and sanction in respect thereof should be obtained before 31st March 1949. In pursuance of this circular, it appears that the suit lands were put up for auction and that the auction was to be held on 17th April, 1949. On the day of the auction, the plaintiff presented himself and requested for being allowed to take over his lands and cultivate the same. He, however, assumed the Vahivatdar, Kutiyana, about his having purchased the bullocks and other agricultural implements. The auction however was not pursued and ultimately he was allowed to take back the lands for cultivation, as will appear from the order of the Revenue Commissioner, Ex. 36 dated 6th May, 1949. The condition, however, put therein was that he should cultivate the lands personally.
(12) In this connection, it was contended by Mr. J.R. Nanavati, the learned advocate, appearing for the appellant-plaintiff, that the act on the part of the Revenue Commissioner would not amount to resumption by the State under the Junagadh Revenue Code, which governed, and the provisions whereof were not followed, and consequently all the proceedings taken in pursuance of such a circular were bad and void. As already pointed out herein above, the plaintiff was Chav Khatedar and though the lands held by him could only be resumed and auctioned away after following the proper procedure contemplated in Schedule `F' to the Revenue Code of the then State of Junagadh, then in force, the appellant-plaintiff should have been given an opportunity and a three years' or at any rate one year's notice was absolutely necessary to be given before his lands could be taken away. On the other hand, it was urged by Mr. G.T. Nanavati, the learned Assistant Government Pleader, appearing for the State, respondent No. 1 that such a point was not urged before the trial Court and since it involves the question of fact, it cannot be allowed to be raised before this Court. Alternatively, he contended that having regard to illustration (e) to Section 114 of the Evidence Act, a presumption should be raised in favour of the State about the entire procedure being followed and more particularly in absence of any material on record to the contrary. If such a point required the consideration of the facts, on which any evidence were to be led, I would not have allowed the same to be raised. But as pointed out by Mr. J.R. Nanavati, no such facts are required to be brought under the Evidence Act, and since that does appear to be a question of law arising out of the provisions of the Junagadh Revenue Code admittedly applicable to the present case, such a question is allowed to be raised. It is a point of law and it shall be considered on the evidence on record and no additional facts would be allowed to be placed or considered in the circumstances of the case. As to the presumption arising under Section 114 of the Evidence Act, that would not help, as in the present case the State of Junagadh was taken over by the Union of India in November 1947, and the auction of the lands in question was held on 17th April, 1949, and that way, the period of three years, at any rate, was not over as required by Clause (c) of Schedule `F' attached to the Jungadh Revenue Code. Before resuming the suit lands and putting them for auction, which can only be done after three years have elapsed, the plaintiff should have been given an opportunity to cultivate the suit lands personally by his bullocks and implements etc. He cannot, therefore, be said to have absented himself from having cultivated the suit lands for a period of three years from November 1947. The irresistible conclusion would be that the procedure contemplated under the provisions of the then Junagadh State Revenue Code was not at all followed. The circular, Ex. 33 dated 20th December, 1948, issued by the Revenue Commissioner gave only one month's time for people to get their lands back and at the highest it is said to have given three months and ten days before the lands could be resumed and auctioned away. That cannot be said to be any compliance with the provisions of the Junagadh Revenue Code, which governed the parties at the relevant period. The act of resumption, if there be any, and putting up the lands for sale by auction on 17th April, 1949, was unauthorised and beyond the powers of the Revenue Commissioner as that was done without following the procedure laid down in those provisions. As the lands cannot be said to have been validly resumed, the plaintiff would continue to hold in the same right as he held them before under the provisions of the Junagadh Land Revenue Code. Thus he was restored to his original position as a Chav Khatedar in respect of his lands, and did not thus hold under any such condition, which if not complied with would entitle the Assistant Collector to resume his lands and give away to any other person as done in this case.
(13) Since such is the position, any orders passed by the Assistant Collector, Porbandar, on the basis of the inquiry made and finding arrived at by him about the plaintiff not personally cultivating the suit lands would be equally bad, as admittedly the rights of the plaintiff vis-a-vis the lands in question were governed by the Junagadh Revenue Code. Now, by order dated 6th September, 1952, the suit lands came to be taken over by cancelling the order passed in favour of the plaintiff before, and then they came to be allotted to defendants Nos. 2 and 3, who held under a lease, Ex. 7, dated 30th June 1951, in favour of the plaintiff. Such an allotment cannot be justified, and that order is, therefore, illegal and void. On the other hand, it appears that the provisions of the Bombay Land Revenue Code came to be applied to that area of the then State of Junagadh, with effect from 25th September, 1949, and the plaintiff would be governed by the provisions contained therein for the simple reason that the Junagadh Revenue Code stood repealed from that date. It further appears that by Resolution dated 1st March 1950 published in Saurashtra Government Gazette of 1950, Part III, page 160, the Government of Saurashtra was pleased to hold that occupancy rights as provided for in the Bombay Land Revenue Code, 1879, as adapted and applied to Saurashtra, be conferred upon the existing holders of the Khalsa lands without charging any price with effect from the date the said Code has come into force in Saurashtra. Thus the plaintiff at any rate by reason of this resolution became an occupant as contemplated under the provisions of the Bombay Land Revenue Code and the character of his holding came to be governed by the provisions contained therein. Mr. J.R. Nanavati's contention is that by reason of Section 73 of the Bombay Land Revenue Code, an occupancy shall, subject to the provisions contained in Section 56, and to any conditions lawfully annexed to the tenure and save as otherwise prescribed by law, be deemed a heritable and transferable property, and therefore the plaintiff was entitled to transfer the suit lands under a lease to defendants Nos. 2 and 3. In this connection, it is urged by Mr. G.T. Nanavati, the learned Assistant Government Pleader, for the State the occupancy right in respect of the lease in question was subject to the conditions lawfully annexed to the tenure and that the main condition attached to the suit lands when the plaintiff was given over the same back after cancelling the auction was that he had to personally cultivate the same. He was then found not to cultivate the said lands and consequently he has become liable for the breach of the condition, and thus the suit lands can be taken over and given away to some other person, as he had committed the breach of the condition, which was lawfully annexed to the tenure. According to him, Section 73 has to be read subject to Section 68 of the Bombay Land Revenue Code and since the plaintiff had committed the breach of that condition, the order passed by the Assistant Collector, Porbandar, in respect of the lands in question was legal. I have already found that all the proceedings which took place in pursuance of the circular issued by the Revenue Commissioner, namely, the resumption of the property and putting it up for auction were bad in law inasmuch as they had not followed the procedure contained in the Junagadh Revenue Code, which then applied, and consequently any condition even if it was accepted by him cannot stand so as to fetter his right in the lands. At the same time, since the plaintiff's rights would be governed by the provisions of the Bombay Land Revenue Code itself and no such condition can govern his holding. That condition cannot be said to be a condition lawfully annexed to the tenure. In these circumstances, the order of the learned Civil Judge cannot be sustained inasmuch as he held that the Revenue Commissioner was entitled to resume the lands of the plaintiff on the plaintiff committing the breach of the condition governing his lands. In my opinion, therefore, the order of the Assistant Collector, Porbandar, whereby the plaintiff's right is put to an end and whereby defendants Nos. 2 and 3 are given the suit lands cannot stand, the same being unauthorised, without jurisdiction and against the provisions of law. The plaintiff is, therefore, entitled to the declaration sought for by him.
(14) In the result, the appeal is allowed and the order passed by the learned Civil Judge is set aside. It is declared that the order dated 6th September, 1952 passed by the Assistant Collector, Porbandar is illegal, unauthorised and void and that the defendants Nos. 2 and 3 have no right thereunder. The defendant State shall pay to the plaintiff costs in both the Courts and bear its own.
(15) No order is passed in respect of the other appeal in view of the order passed in this appeal. No order as to costs.
(16) Appeal allowed.