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Ambalal Ranchhoddas (Deed. by His Heirs) and anr. Vs. Shamjibhai Ladhabhai Patel and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtGujarat High Court
Decided On
Judge
Reported in(1969)10GLR197
AppellantAmbalal Ranchhoddas (Deed. by His Heirs) and anr.
RespondentShamjibhai Ladhabhai Patel and anr.
Cases ReferredSotnabikharswami v. Shivappa
Excerpt:
- - it appears that ambalal must have been holding their power of attorney as well. 7a, which was a pencil entry showed the name of shamjibhai as tenant and that ambalal had failed to prove that it was a wrong entry. when he failed to prove his possession and before even the mamlatdar issued an injunction against him on 22-9-58, ambalal was diligent enough to file an application for evicting opponent no. the only reason given by the revenue tribunal is the fact that chandulal had given power of attorney to ambalal on 25-3-58. that would be no criterion for holding that any such cause for such compulsory declaration bad accrued to chandulal. 1. however, he failed to prove his possession and injunction was issued against him. thereafter, their lordships raised a further question as to.....j.b. mehta, j.1. these two petitions are filed by two brothers who are landlords challenging the order of the revenue tribunal, dated 18th august 1962. by which the revenue tribunal has set aside the findings of the two lower authorities. it has held that the application of the two landlords under section 70(b) of the bombay tenancy and agricultural lands act, 1948, hereinafter referred to as 'the tenancy act' were time barred and has dismissed the said application on that ground. as these two petitions raise common questions of law and facts they are disposed of together by this common judgment.2. the short facts which have given rise to these petitions are as under:s.no. 387, admeasuring 7 acres and 30 gunthas originally stood in the name of one brother ranchhoddas, the petitioner in.....
Judgment:

J.B. Mehta, J.

1. These two petitions are filed by two brothers who are landlords challenging the order of the Revenue Tribunal, dated 18th August 1962. by which the Revenue Tribunal has set aside the findings of the two lower authorities. It has held that the application of the two landlords under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as 'the Tenancy Act' were time barred and has dismissed the said application on that ground. As these two petitions raise common questions of law and facts they are disposed of together by this common judgment.

2. The short facts which have given rise to these petitions are as under:

S.No. 387, admeasuring 7 Acres and 30 Gunthas originally stood in the name of one brother Ranchhoddas, the petitioner in Special Civil Application No. 1018 of 1962. It is the case of the petitioner that the original S. No. 387 was divided into two parts in 1950-51 and accordingly, 3 acres of land went to the share of the petitioner Ambalal and it was given a separate number, 387/1-2 while the remaining 4 Acres and 30 Gunthas went to the share of the other brother Chandulal. He died 'during the pendency of these proceedings and his heirs are the petitioners in Spl.C.A. No. 1019/62. That land was given S. No. 387/A/I. On 17th June, 1957 opponent No. 1 tenant, Shamjibhai Ladhabbai, filed a suit in the Mamlatdar's Court under Section 5 of the Mamlatdar's Court Act for injunction in respect of the entire original S. No. 387 against only one brother Ambalal on the ground that even though he was a tenant of that land, the petitioner Ambalal was interfering with his possession. In that suit the other brother Chandulal was not joined as a party. The petitioner Ambalal filed a written statement in the suit on 15th July 1957 denying that the opponent No. 1 was in possession of that land or that he was a tenant. By the order, dated 22nd September 1958, the Mamlatdar issued an injunction against the petitioner Ambalal from disturbing the cultivation of opponent No. 1 Shamjibhai, but as Chandulal was not a party to that suit, the order was confined to that part of the land which belonged only to the petitioner Ambala), viz. S. No. 387/1, 2 of 3 Acres only. The Mamlatdar had relied upon the pencil entry in the Village Form 7A, showing Shamjibhai as tenant, which was made on 15th March 1957. On 11th October 1958 a notice was served on Ambalal to show cause why that pencil entry should not be confirmed, and in that mutation proceeding Ambalal had lodged his objections on 22nd October 1958. Meanwhile, Ambalal had already applied for summary eviction of the tenant Shamjibhai before the Collector under Section 84 of the Tenancy Act on 4th August 1958. By the order dated 19th May, 1959 the Collector held that the said application did not lie and referred Ambalal to the Mamlatdar to get decision under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as 'the Act'. It also appears from the record that the other brother Chandulal had given power of attorney to petitioner Ambalal in respect of his land on 25th March, 1958. During the pendency of the application under Section 84 by Ambalal against oppondent No. 1, both the brothers filed the present applications under Section 70(b) of the Act on 11th April 1959. The Mamlatdar disposed them by (he order dated 29th August 1959 holding that opponent No. 1 Shamjibhai was a tenant. In Appeal the Prant Officer remanded this matter by the order, dated 30th July 1960. Meanwhile the other brother Chandulal died and on 26th January 1960 his heirs were brought on record. It appears that Ambalal must have been holding their power of attorney as well. On 28th August 1961 the Mamlatdar passed the final order holding that opponent No. 1 was not a tenant. The Mamlatdar held the application to be within six months from the date when notice of the pencil entry on the record of rights was served on Ambalal to show cause why it should not be confirmed, and also on the ground that the time taken by Ambalal in proceeding with his application under Section 84 could be rightly excluded. The Prant Officer in appeal, by his order, dated 25th January 1962 confirmed this order on both these questions viz. as regards the limitation and as regards opponent No. 1 Shamjibhai being not a tenant. In revision, however, the Revenue Tribunal has set aside both these orders by the impugned order, dated 18th August 1962 on the ground that the application of these landlords were time barred. The Revenue Tribunal has also observed that in that view of the matter it was not deciding the question on merits and that otherwise it would have been found necessary to remand the matter to the Prant Officer as he had not properly approached the entire question by appreciating all the evidence on the record. As regards Chandulal also, the Revenue Tribunal has held that as Ambalal was acting as the power of attorney holder and as he had knowledge of the title being disputed by opponent No. 1, the said knowledge could be fastened to Chandulal and, therefore, his application under Section 70(b) was also time barred. It is this order which is challenged in both these petitions by both the landlords.

3. Mr. Amin at the hearing raised the following three questions which were raised in the petitions.

(1) That the view of the Revenue Tribunal that six months' limitation period applied even to a proceeding under Section 70(b) of the Act was patently erroneous and the various decisions on this question, require to be reconsidered by the larger Bench.

(2) That In any view of the matter and cause of action for getting compulsory declaration had arisen within six months of the present application and, therefore, the Revenue Tribunal had patently erred in reversing the decision of two lower authorities on this question.

(3) That the Revenue Tribunal has patently erred in not excluding the period during which Ambalal had been bonaflde prosecuting with due diligence his defence in the Mamlatdar's Court and the time taken during Ambalal's application under Section 84 of the Tenancy Act, and that in any view of the matter Chandulal's application could never be held to be time barred.

4. We would first consider the other two points raised by Mr. Amin, because the wider question would be necessary to be gone into, only if Mr. Amin fails in his later two contentions. The facts in the present case are not in dispute. Opponent No. 1 tenant Shamjibhai had filed his suit under Section 5 of the Mamlatdar's Court Act on 17th June, 1957 alleging that he was a tenant of the petitioner Ambalal cultivating the entire S. No. 387 for six or seven years. He prayed for an injunction as Ambalal wanted to dispossess him from that survey number and had attempted to do so on 14th April, 1957. Ambalal had filed a written statement on 15th July 1957 stating that he was the owner of only one portion of S. No. 387, admeasuring 3 Acres only and that he was personally cultivating the suit land and that opponent No. 1 was not a tenant and was a trespasser. The Mamlatdar in that case had given a finding that opponent No. 1 appeared to be in possession on the evidence on record and that even the entry in the village Form No. 7A, which was a pencil entry showed the name of Shamjibhai as tenant and that Ambalal had failed to prove that it was a wrong entry. In these circumstances the Mamlatdar from disturbing opponent No. 1 in his cultivation of the suit land and as Chandulal was not a party to the suit the injunction was confined to 3 Acres land of Ambalal bearing S. No. 387/1/2. A bare perusal of this order makes it clear that the only question which the Mamlatdar had gone into was as to whether who was in possession. The Mamlatdar had not decided the question as to whether opponent No. 1 was a tenant or not and he rightly refrained from doing so in view of the specific bar created by Section 85A of the Tenancy Act, under which even the Mamlatdar's Court must refer to the competent authority the question under Section 70(b) whether the person was a tenant or not. It is true that he was a tenant of the land in question and Ambalal had denied such relationship. But mere assertion on one side and a denial of such relationship on the other side would not necessarily give the cause of action for a compulsory declaration unless there was an infringement or an effective threat to invade or jeopardise the rights of Ambalal by some overt act which would make it necessary for him to obtain the relevant declaration or the decision as to his rights under Section 70(b) of the Tenancy Act from the competent authority viz. the Mamlatdar. As the Mamlatdar Court in the proceeding could not go into the question as to whether opponent No. 1 was a tenant or not, Ambalal was justified in resisting that suit only by showing that he was in possession. When he failed to prove his possession and before even the Mamlatdar issued an Injunction against him on 22-9-58, Ambalal was diligent enough to file an application for evicting opponent No. 1 Shamjibhai under Section 84 of the Tenancy Act on the ground that he was not a tenant under the Tenancy Act. No doubt in the said proceeding the Collector passed his order only on 19-5-59, holding that such an application would not lie before him, unless the relevant question as to whether opponent No. 1 was a tenant or not was first decided by competent Mamlatdar. Ambalal however having known the fate of his application for summary eviction had already filed the present application before the Mamlatdar under Section 70(b) on 11-4-59 and at that time his other brother Chandulal had also filed a similar, separate application against opponent No. 1. One more fact which is material to be considered in this context, is that the pencil entry which was taken into consideration by the Mamlatdar dated 15-3-57 was sought to be certified by the revenue authorities by issuing a notice to Ambalal on 11-10-58 and at that time Ambalal had lodged his protest on 22-10-58. After he had knowledge that the pencil entry was going to be certified showing opponent No. 1 as a tenant in the record of rights and fearing that it might create a presumption against him, within six months Ambalal has filed the present application under Section 70(b) on 11-4-59. It is on these facts that we have to consider as to whether applications of both the brothers were within time.

5. In so far as Chandulal's case is concerned, the answer is obvious. There was no previous suit under the Mamlatdar's Court Act against Chandulal. Merely because Ambalal was his power of attorney holder the Revenue Tribunal has held that the knowledge of Ambalal could be fastened also to his brother Chandulal. This view of the Revenue Tribunal is patently erroneous. The tenant had never asserted hostile title against Chandulal and merely because the power of attorney holder might have known that the tenant was asserting such title in respect of the whole land such cause of action for compulsory declaration or decision could never be said to accrue to the other brother. Even the pencil entry in the record of rights was sought to be confirmed by the revenue authorities only 11-10-58 as seen from the notice served on Ambalal. Therefore, there was nothing in so far as Chandulal was concerned, which would show that cause of action had accrued to him on any earlier date. The only reason given by the Revenue Tribunal is the fact that Chandulal had given power of attorney to Ambalal on 25-3-58. That would be no criterion for holding that any such cause for such compulsory declaration bad accrued to Chandulal. Therefore, the order of the Revenue Tribunal is patently erroneous in so far as Chandulal's application is concerned and it must be quashed.

6. Even as regards Ambalal, it is apparent that in the proceedings before the Mamlatdar's Court under the Mamlatdar's Court Act, 1905, the question regarding tenancy though raised by both the parties could not be gone into, and the Mamlatdar's Court had rightly refused to go Into that question. What he was concerned with was only a limited question as to who was prima facie in possession and only from the limited angle he had looked into that pencil entry without giving any finding on the question as to whether opponent No. 1 was a tenant of Ambalal or not. If he wanted to go into that question, the Mamlatdar's Court was bound to make a reference to the Mamlatdar under Section 85A of such question, which was within the exclusive competence of the Mamlatdar under Section 70(b) of the Tenancy Act. At that stage it was sufficient for Ambalal to resist the suit only on the ground that possession was with him and not with opponent No. 1. However, he failed to prove his possession and injunction was issued against him. Before even this injunction order was issued by the Mamlatdar's Court on 22-9-58, Ambalal took the proceeding bona fide and with due diligence before the Collector under Section 84 for evicting opponent No. 1 on the ground that he was not a tenant. As in that proceeding the Collector could not go into the question, Ambalal without waiting for any final order approached Mamlatdar on 11-4-59 by filing the present application. The Collector had passed his final order on 19-5-59 after the present application was not competent as already filed, holding that the application was not competent as Ambalal should have approached the Mamlatdar for decision under Section 70(b). The question has, therefore, arisen whether Ambalal is entitled to seek exclusion of the time taken during these two proceedings. It should also be noted that, meanwhile pencil entry was sought to be confirmed. As notice was issued on 15-10-58 to Ambalal in that connection, he has filed this application within six months thereof on 11-4-59.

7. In order to determine the correct period of limitation for such an application under Section 70(b) we must first find out the nature of this application and the date when cause of action may be deemed to arise in such a case. Section 70 mentions duties and functions to be performed by the Mamlatdar for the purposes of the Tenancy Act. In the various sub-clauses of Section 70 various questions are mentioned which are to be decided by the Mamlatdar, but it should be noted that nowhere the Legislature uses any phraseoloy to suggest that the Mamlatdar shall give any declaration. Under Section 70(a) the Mamlatdar is to decide whether a person is an agriculturist.

8. Under Sub-clause (b) he has to decide whether a person is a protected tenant or a permanent tenant. Under Sub-clause (d) he has to decide the dispute regarding class of land under Section 9A. Under Clause (b) he has to issue a certificate under Section 84A and to decide under Sections 84B or 84C whether a transfer or acquisition of land is invalid and to dispose of land as provided in Section 84C whether a transfer of acquisition of land is invalid and to dispose of land as provided in Section 84C. Under Clause (me) he has to decide reference under Section 85A. Under Clause (md) he has to decide any dispute under Section 88C. Under the other clauses also he determines various issues of questions. Thus, it is clear from the scheme of Section 70 that what is contemplated is the decision of the Mamlatdar who is given exclusive jurisdiction to give certain specific findings on certain questions mentioned in the section. Under Section 71 save as expressly provided by or under the Act, all inquiries and other proceedings before the Mamlatdar or Tribunal shall be commenced by an application which shall contain the particulars mentioned therein, including under Clause (c) the circumstances out of which the cause of action arose. Section 72 lays down the procedure by stating that in all inquiries and proceedings commenced on the presentation of application under Section 71 the Mamlatdar or the Tribunal shall exercise the same powers as the Mamlatdar's Court under the Mamlatdar's Court Act, 1905, and that save as provided in Section 29, he shall follow the provision of the said Act, as if the Mamlatdar or the Tribunal were a Mamlatdar's Court under the said Act and the application presented was a plaint presented under Section 7 of the said Act. In regard to the matters which are not provided for in the said Act, the Mamlatdar or the Tribunal shall follow the procedure as may be prescribed by the State Government. Every decision of the Mamlatdar or the Tribunal shall be recorded in the form of an order which shall state reasons for such decision. Section 72 has been interpreted in various decisions to incorporate the limitation provision laid down in Section 5(3) of the Mamlatdar's Court Act, which provides that no suit shall be entertained by the Mamlatdar's Court unless it is brought within six months from the date on which the cause of action arose. In these circumstances, it is material to determine as to what is the date of the accrual of the cause of action for such an application for the decision of the question, whether a person is a tenant or not under Section 70(b) of the Tenancy Act. While considering the question it would also be material to note that the Legislature had not vested any specific power in the Mamlatdar to give any formal declaration, as in a declaratory suit under Section 42 of the Specific Relief Act. Under Section 85 Civil Court's jurisdiction is excluded only to settle, decide or deal with such questions, which are by or under the Tenancy Act to be settled, decided or dealt with by the Mamlatdar under Section 85A, In such cases if such issues are involved in a pending suit, the Civil Court is bound to stay the suit and refer such issues to the Mamlatdar who is the competent authority for determination of such issues and on receipt of such reference from the Civil Court, is to dispose of the suit. An identical question had been considered by their Lordships of the Supreme Court in Bai Achhuba v. Kalidas : [1964]5SCR853 in the context of Sections 84 and 84A read with Sections 63 and 64 of the Tenancy Act. Under Sections 63 and 64 there were restrictions on sales of agricultural lands and the sale in contravention of those sections are made invalid. Section 84 provides that any person unauthorisedly occupying or wrongfully in possession of any land, the transfer or acquisition of which either by the act of parties or by the operation of law, is invalid under the provisions of this Act, or to the use and occupation of which he is not entitled under the said provisions do not provide for the eviction of such persons, may be summarily evicted by the Collector. Section 84A provides for validation of transfers made before appointed day on payment of a penalty and under Section 84(A)(2) on payment of such penalty, the Mamlatdar shall issue a certificate to the transferee that such transfer is not invalid. Under Sub-section (3) where the transferee fails to pay the penalty within the prescribed time, the transfer could be declared invalid. The scheme of those relevant sections has been interpreted by the Supreme Court to mean that only a finding shall be given that the sale shall be treated as invalid. Even though under Section 84 A the Legislature had used the expression that the transfer shall be declared invalid, the scheme of those relevant sections has been interpreted by the Supreme Court to mean that only a finding shall be given that the sale shall be treated as invalid. At page 654 in the majority judgment delivered by His Lordship Mudholkar J. on behalf of himself and Subba Rao J. (as he then was), it is observed that no doubt, neither Section 63 or Section 64 nor even Section 84 speaks of making a formal declaration by the Collector that a transaction is void because it is in contravention either of Section 63 or Section 64. It cannot be just ignored by the transferor and some authority must determine whether in fact the transfer is in contravention of either of these provisions. The question of obtaining such a declaration will arise where the transferor has lost possession. For obtaining possession, of which the transferor was deprived in consequence of an invalid transfer, the Act enables him to resort to the provisions of Section 84. Under that provision the Collector has to ascertain as already stated, whether the transfer is in fact in contravention of Section 63 or Section 64. His finding in that regard is tantamount to a declaration that the transfer is invalid. There is no provision in the Act which expressly provides for the making of a formal declaration by any Revenue Authority to the effect that a transfer in contravention of Section 63 and Section 64 is invalid. When the Legislature provided in Section 84A that a transfer in contravention of either of the two sections shall not be declared invalid what it meant was merely this that transfer shall not be treated to be invalid even when it is found to be in contravention of Section 63 or Section 64 of the Act. In the minority judgment His Lordship Raghubar Dayal J. also made certain pertinent observations at page 655:

It is clear, therefore, that though the Collector has necessarily, in certain proceedings under Section 84 of the Act, to record a finding that certain sale deed is invalid and consequently the person in possession on its basis, is unauthorised possession, he has no power to formally declare the sale deed to be invalid. Ordinarily it is for the Civil Court to make a formal declaration about the validity of a deed. It is only when any other Act specifically empowers a certain officer or Court to declare a certain deed invalid that Court or officer would have the power to make such a declaration. It follows that the Collector could not, in proceedings under Section 84 of the Act make a declaration about a sale deed to be invalid.

Thus from this interpretation of their Lordships it is clear that the revenue authorities would be only giving decision or finding on the question or issue mentioned in Section 70 or the other relevant sections. In the present case the Mamlatdar's jurisdiction would be only under Section 70 to decide this question. Therefore, even though the Mamlatdar would be deciding the question whether the person is a tenant or not, the decision would be a finding on the question left to the Mamlatdar by the Legislature within his exclusive jurisdiction and it would not amount to any formal declaration, which only the Civil Court could give. Of course, if such a formal declaration is sought in the Civil Court, in view of Section 70(b), the Civil Court would have to make a reference to the Mamlatdar for decision of this issue and after receiving this decision the Civil Court would be able to grant a formal declaration of the status. It is in the light of the scheme of this Act that we should interpret the term 'cause of action' for such an application under Section 70, in which a person asks for a decision or a finding of the competent Mamlatdar on the question mentioned under Section 70(b) only when a necessity arises for getting such a decision.

9. Even on the basis that this was an application for a declaration, Mr. Amin in this connection rightly relied upon the decision in Mat. Rukhamabai v. Lal Laxminarayan 1960 (2) S.C.R. 353, where their Lordships have in terms considered the question, as to when such a cause of compulsory declaration could be said to accrue to a litigant. In that case a joint Hindu family had owned extensive properties and business. It became heavily indebted and one of the family members named Govindprasad executed a registered deed of relinquishment along with certain other members of the family in 1915 in favour of a member of the family, which sought to recite that they were confirming earlier arrangement. Thereafter Govindprasad executed a trust deed on 17th February 1916 in favour of two minors, one Chandulal, the brother's son and Rukhmabai the daughter of another brother in a sum of Rs. 15000/- for constructing a building or buying land therewith and paying out the income from it to the two beneficiaries in equal shares. Thereafter a site was purchased from these moneys and a building was constructed. On 25-10-29 the beneficiary Rukhmabai filed a suit against the other beneficiary Chandulal for partition of the suit properties. When that partition decree was for the first time sought to be enforced by the Commissioner on 13-2-1937, the respondent in that case, who was brother of Chandulal obstructed. He filed on 8-10-40 a declaratory suit that the trust deed executed by Govindprasad was a sham document and that the property conveyed was the joint family property. In these circumstances a question had arisen before their Lordships as to whether the said suit was time barred as it was conceded that the plaintiff in that case, the brother of Chandulal who was respondeat in the appeal had knowledge of the previous litigation between Rukhmabai and his brother Chandulal claiming the property under the trust deed. He had also knowledge of the fraudulent character of the trust deed as early as 1917 or at any rate during the pendency of the partition suit instituted in 1929. On these facts it was contended that the suit of that brother of Chandulal filed in 1940, admittedly after six years, was barred by Article 120 of the Indian Limitation Act, 1908, as it was filed more than six months after the date when the right to sue accured. At page 287 Their Lordships approved the decision of the Judicial Committee in Bolo v. Koklan 57 I.A. 325 at 331, where Sir Benod Mitter observed as under:

There can do right to sue until there is infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.

Their Lordships observed that the said principle was rested and followed by the judicial Committee in the various decisions mentioned by Their Lordships. Thereafter, their Lordships raised a further question as to when it could be held that a person's right had been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right, if there were successive invasions or denials of a right. This question was sought to be answered by Their Lordships by referring to the view of Venkatasubbarao J. in Pothukutchi Appu Rao v. Secretary of State A.I.R. 1938 Madras 193, which was expressed in the following words:

There is nothing in law which says that the moment a person's right is denied, be is bound at his peril to bring a suit for declaration. The Government beyond passing the order did nothing to disturb the plaintiff's possession. It would be most unreasonable to hold that a bare repudiation of a person's title, without even an overt act, would make it incumbent on him to bring a declaratory suit.

At page 199 Venkatasubba Rao J. further observed:

It is more difficult question, what is the extent of the injury or infringement that give rise to what may be termed a compulsory cause of action

After considering all these decisions Their Lordships finally summarised the entire legal position in the following words at page 288:

The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however Ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. We ether a particular threat given rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.

Apply this ratio to the facts before Their Lordships it was held that the trust deed as well as the suit house were constructed for the benefit of the family and so, execution of the trust deed could not constitute invasion of the plaintiff's right. In fact the plaintiff's father resided in that house till 1926. In 1928 when Daga challenged the trust deed, the family compromised the matter and salvaged the house. From 1936 onwards the plaintiff had been residing in the suit house. Even though the plaintiff had knowledge of the litigation between Rukhmabai and Chandulal claiming the property under the trust deed; he was not a party and the decision in that litigation did not in any way bind him or effect his possession of the house. It is only when the Commissioner for the first time came to the house to effect partition on 13-2-1937 that when the plaintiff raised an objection and filed the present suit. At page 289 Their Lordships observed that it was manifest that the plaintiff's right to the property was not effectively threatened by the appellant till the Commissioner came to divide the property. It was only then there was an effectual threat to his right to the suit property and the suit was filed within six years thereafter, which was within time. Applying this ratio, it is obvious that the view of the Revenue tribunal that mere assertion of a right and its denial would give a cause of action for a suit for such compulsory declaration is patently erroneous. The Revenue Tribunal has held that as in the suit before the Mamlatdar's Court Act, opponent No. 1 had made a claim for an injunction in the capacity of a tenant and Ambalal had denied that assertion by contending that opponent No. 1 was not a tenant, from the date of the said written statement of Ambalal on 15-7-57, the cause of action accured for the present decision under Section 70(b) of the Tenancy Act. The Revenue Tribunal ignored the fact that there was no effective threat on that date, because if Ambalal proved before the Mamlatdar that possession was with him, the suit of opponent No. 1 was bound to fail. It is only when he failed to prove possession and as the Mamlatdar's Court could not go into the question as to whether opponent No. 1 was a tenant or not, that the injunction was issued against him by the Mamlatdar's Court for the first time on 22-9-58. The question of tenancy was not and could not be in issue in that proceeding which was decided on a prima facie case being made out in respect of the fact of possession only. As soon as Ambalal failed in that suit and the injunction order operated against him from 22-9-58, it might be said that the cause of action had accrued to him to get a compulsory declaration, because the threat had materialised and it had become effectual from the date when the injunction was issued. Ambalal, however even before the injunction was issued, was vigilent enough to file an application under Section 84 for recovery of possession from opponent No. 1 on the ground that he was not a tenant. No doubt under Section 84 of the Tenancy Act, the Collector refused to entertain such an application by the final order passed on 19-5-59, by directing him to obtain decision of the Mamlatdar under Section 70(b). Ambalal had without waiting for this final order already moved the Mamlatdar on 11-4-59 for obtaining a decision on this question under Section 70(b). Ambalal was, therefore, bona fide and with due diligence prosecuting his claim, before the Collector under Section 84 on the basis that opponent No. 1 was not a tenant, and which could not be entertained by the Collector for want of jurisdiction. Therefore, Section 14(2) of the Limitation Act 1908 clearly applied and the running of limitation against Ambalal from the date of the Mamlatdar's Court order on 22-9-58 would be clearly suspended. The Revenue Tribunal has held that Ambalal was not entitled to get exclusion of this period under Section 14(2) of the Limitation Act, read with Section 29 of the Indian Limitation Act, 4908, on the ground that the Collector has passed the final order only on 19-5-59, before which he had already filed the present application. That would only curtail the time. What is material to be seen for such exclusion of time under Section 14(2) is the fact that the plaintiff was prosecuting his claim bona fide with due diligence before another Court, which was not competent to entertain the same. The Revenue Tribunal's view in this respect is, therefore, patently erroneous and is plainly inconsistent with Section 14(2) of the Indian Limitation Act and it must be set aside. If the period is excluded for the application under Section 84 from 4-8-58 till the present application was filed on 11-4-59 there is no bar of limitation even if the cause of action is taken to have accrued from the date of the order of the Mamlatdar's Court on 22-9-58. It should also be kept in mind that the Mamlatdar had acted upon only a pencil entry, and as soon as the same was sought to be confirmed by a notice issued to Ambalal on 11-10-58, Ambalal felt that the threat was going to materialise by final entry being made in the record of rights. He immediately filed the present application within six months on the last date of the limitation period on 11-4-59. The Mamlatdar has relied on both the grounds for holding that the application of Ambalal was within time as he had approached within six months from the receipt of the notice for confirming the pencil entry in the record of rights and because the period taken in the application under Section 84 should be excluded. The Revenue Tribunal's order is patently erroneous in so far as it has reversed this order of the two lower authorities on the ground that cause of action for such a compulsory declaration arises as soon as there is a mere assertion of title on ore side and denial by the other. If the threat was not going to materialise or was bound to be ineffective and futile and which it would have been if Ambalal was able to prove that he was in possession, no such cause of action for a compulsory declaration or a decision could be deemed to accrue to Ambalal. Therefore, even in respect of Ambalal, the order of the Revenue Tribunal is patently erroneous and it must be quashed It is true that Mr. Amin also wanted the exclusion of time for the proceedings In the Mamlatdar's Court where Ambalal was resisting the claim of opponent No. 1 for injunction. Mr. Amin relied upon Section 14 of the Limitation Act in this connection, in so far as Explanation II provides that for the purpose of that section a plaintiff or an applicant resisting the appeal shall be deemed to be prosecuting the proceeding. Section 14(1) deals with the plaintiff for excluding time of the proceeding prosecuted by him bona fide and with due diligence in a Court without jurisdiction against the defendant whether in the first Court or in the Court of appeal, while Section 14(2) deals with the applicant who prosecutes any application in such circumstances. The explanation would only show that the plaintiff or the applicant would be considered to be plaintiff or the applicant even when at the stage of the appeal he might be the respondent resisting the appeal. The material criterion for the application of the section is that the plaintiff must be prosecuting his claim whether in the first Court or in the appeal by resisting the appeal. This provision could never apply to the original defendant or opponent in an application. Mr. Amin sought to rely on the decision of the Privy Council in Ramdutt Ramkissandass v. E.D. Sasoon & Co. I.L.R. 56 Cal. 1042. In that case Their Lordships of the Judicial Committee excluded the time occupied by the plaintiff bona fide and with due diligence not only in obtaining the previous award on the same cause of action but in resisting the suit which had been filed by the other side for setting aside that award. This decision could not help Mr. Amin for the simple reason that even in the original arbitration it was the same plaintiff who was prosecuting his claim by obtaining the previous award and he was only resisting the suit filed for setting aside that previous award ii his favour for want of jurisdiction in the arbitrator. In these circumstances at page 1059 Their Lordships observed that the respondents were prosecuting with due diligence their claim against the appellants and that the second arbitration was founded on the same cause of action and was prosecuting in good faith before the previous arbitrator, who from defect of jurisdiction was found not competent to exercise jurisdiction in the matter. If the period in question during which the respondent's claim was held because the proceeding instituted for the purpose of setting aside the first award and in obtaining final judgment on that questions excluded from the period of limitation, there could be no doubt that the respondents were within the period prescribed. The case was therefore on its own facts and it does not lay down any different principle. Mr. Amin also relied upon decision of the Privy Council in Nrityamoni Dassi v. Lakhan Chandra Sen I.L.R. 43 Cal. 660. In that case also Their Lordships had excluded the period under Section 14, as In fact it was found that in the previous suit, where the present plaintiffs were joined as defendants they were in reality supporting the plaintiffs and asking for a declaration of their, shares and, therefore, they had associated themselves with the plaintiff for getting their shares and sought a declaration in those proceedings for adjudication of their own rights. Mr. Amin also tried to rely upon a decision in Sotnabikharswami v. Shivappa 26 Bom. L.R. 863, where Sir Lallubhai Shah, Ag. Chief Justice sitting with Mr. Justice Crump, observed at page 866 that under certain conceivable cirumstances the applicant may be said to be prosecuting with due diligence a proceeding, in which he is contesting the proceeding initiated by his opponent within the meaning of the Section 14(2). Such a conceivable case would be one where the defendant or the opponent would be supporting the plaintiff and seeking adjudication of his rights in the same proceeding, as it happened in the aforesaid decision of the Judicial Committee, I.L.R. 43 Cal. 660. In fact the ratio of the Division Bench is clearly against Mr. Amin as it has in terms held that Section 14 could not be invoked to exclude the period taken in another proceeding for the plaintiff was not prosecuting in civil proceeding but was merely defending a suit brought against him. In that view of the matter, Mr. Amin's contention cannot be upheld so far as he wants the period in the Mamlatdar's Court, where the peritioner Ambalal was resisting the claim of oppondent No. 1, to be excluded and to that extent, the Revenue Tribunal was right In its order. As, however, I have held that Ambalal was entitled to get the period excluded for the proceeding under Section 84 of Tenancy Act, the order of the Revenue Tribunal must be quashed as the application by Ambalal and his brother Chandulal was obviously within time. On clear misconception of law, Revenue Tribunal has held that these applications were time barred. The order being patently erroneous on this question of limitation must be set aside and this petition must be allowed. It is, therefore not necessary to go with the wider question by Mr. Amin in his first ground.

10. Mr. Amin, however, argued that the Revenue Tribunal had in the concluding para observed that as the Prant Officer had not properly appreciated the evidence, it would have been necessary to remand the matter, if they were of the view that the applications were within time. The Revenue Tribunal has, however, not expressed any final opinion on that question and it is open to Mr. Amin to raise all his contentions before the Revenue Tribunal when the matter goes back to the Revenue Tribunal including this question that it had no jurisdiction. It shall be also open to him to request the Tribunal that it should itself go into the question, as all the evidence was on the record and as the matter had now been sufficiently delayed all this time.

11. In the result, both these petitions are allowed and the order of the Revenue Tribunal holding that the applications of both these landlords were time barred is set aside and the matter shall now go back to the Revenue Tribunal to dispose of the two revision applications as expeditiously as possible as sufficient time had already elapsed.

12. Rule accordingly made absolute in each petition with costs. Petitions allowed.


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