N.H. Bhatt, J.
1. This is an appeal by the original plaintiff of the Regular Civil Suit No. 50 of 1967 of the Court of the Civil Judge (J.D.) Himatnagar who was pleased to dismiss the same with costs. The defendant No. 1 is the State of Gujarat and the defendant No. 2 is the Tdar Nagar Panchayat. The plaintiff's appeal, being the Regular Civil Appeal No. 1 of 1972 in the District Court had corns to be dismissed by the learned Joint Judge there at Himatnagar and hence the original plaintiff has filed the present second appeal.
2. The dispute concerns an open land situated within the limits of village Idar in Sabarkantha District. The plaintiff admittedly owns the nearby standing super structure bearing Nagar Panchayat No. 527. The said house is situated in Ward No. 1 in the town of Idar. This house was purchased by the father of the plaintiff in the year 1922 from one Purohit Tejaram. Then in the year 1932 the plaintiff's father had purchased the open land situated on the earth, east and west of the said house from the then ruler of Idar who had granted a Sanad, popularly known as Parvana, bearing No. 1359 dated 22-8-1932. This land covered by the said Sanad is known as Khunta land and one of the terms of the grant was that the laud was to be used as open land. The suit concerned that Khunta land and is hereinafter referred to as the suit land. The map, Ex. 80, depicts the land in dispute and the map in the alleged Parvana Ex. 56 also depicts the situation. As far as the location of the suit land is concerned, there is no controversy though Ex. 56 which purports to be a copy of the original Sanad was held by the trial Court as admissible in evidence whereas the lower appellate Court held it as not admissible in evidence for want of production of the original and for want of any evidence permitting secondary evidence. On the north of the part of the land there is the Swaminarayan temple at Tdar.
3. In respect of this land the Panchayat's predecessor, the then Municipality, had given notice to the plaintiff to remove the structure which was put up by the plaintiff on this land. The said notice was issued on 18-11-1961 against the plaintiff under Section 90(5) of the Bombay District Municipality Act, 1901, whereby the plaintiff was called upon to make open the said land which was said to be the street land failing which necessary action was threatened. In reply to the notice by the Municipality, the plaintiff had submitted his objection in December 1961 inter alia contending that the notice was given to him without hearing him, that the land was of his ownership pursuant to the Sanad granted by the Idar Slate. It appears that after the plaintiff's reply the Municipality did not take any action as threatened in the aforesaid notice. But the Municipality pursued the matter on administrative level with the Government and the result was that the Government of Gujarat by its order, dated 21-1-1963 directed the Collector, Sabarkantha, to remove the obstruction on the said land. The Collector in his turn asked the Chairman of the Nagarpanchayat to remove that obstruction by a particular date viz. 5-2-63. Thereupon the Chairman of the Panchayat issued a notice dated 29th April 1963 under Section 94 of the Gujarat Village Panchayats Act calling upon the plaintiff to remove the obstruction on the suit land which was alleged to be a public road, obviously vested in the Panchayat. The plaintiff replied to that notice by a statutory notice under Section 320 of the Gujarat Panchayats Act, being dated 2-5-63 challenging the legality and vires of the action and authority of the Nagar Panchayat and its chairman or the Gujarat State or its agent the Collector of Sabarkantha to initiate this sort of proceeding. Thereafter the Nagar Panchayat passed a resolution on 13-6-63 requesting the Stale of Gujarat to declare the suit land as a public street and so as to vest the same in the Panchajat under Section 95. On the one hand the Panchayat on the earlier occasion laid a claim to this land as street land vesting in it and subsequently thereafter the Panchayat in order to get the matter straightened requested the Government to declare the land as street land. The State of Gujarat, however, felt that prima Jade the land was a street land, the plaintiff was however laying his claim against the Panchayat and inquiry under Section 101 of the Gujarat Panchaya's Act was contemplated. The Prant Officer, therefore, held inquiry after complying with all the principles of natural justice and on 11-3-1966 he declared the said land as public street land and negatived the claim of the plaintiff to it as his property. On 23-3-66 on receipt of the intimation of the order passed by the Prant Officer, the plaintiff challenged the said order as illegal, ultra vires, unauthorised etc. and served a notice of the State of Gujarat, the defendant No. 1 herein, and then filed the suit in question. The Idar Nagarpanchayat which was joined as the defendant No. 2 in the suit was also served with an identical statutory notice. The plaintiff in this suit sought a declaration that the land on the southern side of the backwall of the Swaminarayan temple on the western corner of the said backwall and as described in detail in the plaint was a part and parcel of the Khunta Mapni land comprised in his Sanad, dated 22-8-33 and as such was of his exclusive ownership. The plaintiff as a consequence sought for 'an injunction restraining the defendants from in any way interfering with his possession and enjoyment of the suit land.
4. The suit was resisted on behalf of the State inter alia on the ground that the suit was barred under Section 11 of the Revenue Jurisdiction Act, 1976, that the plaintiff was not the owner of the suit land, that the plaintiff was not entitled to a declaration and injunction as sought for by him.
5. The learned trial Judge dismissed the plaintiff's suit on the ground that the plaintiff had failed to prove that the disputed land was of his exclusive ownership and in his possession and also because the plaintiff had failed to exhaust all remedies of appeal under Section 204 of the Land Revenue Code within the period of one year before rushing to the Civil Court, and consequently his suit was not competent in view of Section 11 of the Revenue Jurisdiction Act.
6. The learned appellate Judge had raised the following points for determination:
1. Whether it is proved that the order dated 11-3-66 passed by the Prant Officer under Section 101 of the Gujarat Panchayats Act, 1961 is illegal, invalid and with out jurisdiction.
2. If not, whether the suit is not maintainable without exhausting all remedies, i.e. appeals as provided by Section 204 of the Land Revenue Code,
3. If no, whether the suit is in time,
4. Whether the defendant No. 1 the State proves that the suit land is street land and was and is used as such street land,
5. Whether the plaintiff proves that the suit land is comprised in Parvana No. 1395 and is of Khunta Mipni land of his exclusive ownership and in his possession and uninterrupted and unobstructed enjoyment since 1938,
6. Whether the plaintiff is entitled to declaration and injunction as prayed for.
7. The learned Judge held that the order, dated 11-3-66 passed by the Prant Officer under Section 101 of the Gujarat Panchayats Act, 1961 was legal, that the plaintiffs suit was barred under Section 11 of the Bombay Revenue Jurisdiction Act, and that the plaintiff failed to prove that the suit land was comprised in his Sanad and was Khunta Mapni land as such was of his ownership and in his possession and uninterrupted enjoyment since 1938. The result was that the learned appellate Judge dismissed the plaintiff's appeal and so the plaintiff has preferred this second appeal.
8. Mrs. Mehta, the learned Advocate appearing for the plaintiff-appellant canvassed the following points.
(1) The plaintiffs suit was not barred under Section 11 of the Revenue Jurisdiction Act because the Prant Officer had no authority to hold an enquiry in question under Section 101 of the Gujarat Panchayats Act, that for want of authority in the Prant Officer to hold an inquiry, the order was a nullity; and that no appeal was contemplated by Section 101 of the Gujarat Panchayats Act and consequently Section 11 of the Bombay Revenue Jurisdiction Act, 1876 was not at all attracted.
(2) The lower appellate Court had ignored two important pieces of documents viz. the plaintiffs title deed to Ex. 56 by holding it inadmissible in evidence, and (2) by ignoring the judgment on Regular Civil Suit No. 144/38-39 between the plaintiff on the one hand and Tejaram on the other.
9. Mrs. Mehta's first contention in respect of point No. 1 was that under Section 101 of the Gujarat Panchayats Act the Prant Officer had no authority to initiate and conduct the inquiry in question because the Panchayat had not laid any claim to the suit land. This is far from being correct. The above synopsis of the history of the litigation given by me above shows that on as many as two occasions the then Municipality and the Nagar Panchayat had called upon the plaintiff to clear of the encroachment on the land in question on the ground that it was a street land. Mrs. Mehta invited my attention to the resolution of the Nagar Panchayat which is quoted by the learned trial Judge in para 18 of his judgment. Placing reliance on this resolution by the Panchayat it was urged that the Panchayat was not laying any claim to the suit land because the Panchayat was requesting the Government to resume or acquire this land and declare it as a public street land. Mrs. Mehta read in this resolution an admission of the plaintiff's right by the Panchayat. The evidence speaks that when this resolution came to be passed the plaintiff was the Chairman of Nagar Panchayat. Apart from that, the Panchayat is existing in perpetuity right from the year 1961 till 1963 the Panchayat had asserted its claim to this land as street land. The resolution, relied upon by Mrs. Mehta is therefore interpreted to mean that the order striking at the root of the controversy was recommended by the Panchayat in order to avoid once for all the long drawn controversies and possible litigation. The resolution cannot be understood to mean that the Panchayat had forsaken its claim to the land. It, therefore, cannot be true to say that the enquiry under Section 101 was not competent.
10. Mrs. Mehta in this connection had urged that in this case the initiation of the inquiry originated with the Government and not with the Panchayat. This also is not factually correct. After issuing the first notice the then Municipality had moved the Government. Even on that second occasion the Nagar Panchayat had done so. The Government is the ultimate repository or all public properties vested in the Panchayat and other local bodies and would obviously be interested in seeing that the public properties are not wasted. The Government, therefore, seems to have taken up the cause at the instance of the Municipality and the Nagar Panchayat and it is, therefore, clear that the claim was laid against this property by the Panchayat or at any rate by the Government on behalf of the Panchayat. Section 101 of the Gujarat Panchayats Act says that if any property is claimed by or on behalf of the Panchayat or by any person against the Panchayat it shall be lawful for the Collector to hold a formal inquiry. At any rate in this case all the three requirements are complied with. In the years 1961 to 1963 the local authority did lay a claim on this land. Secondly, the Government put forth the claim on this land as a public street land lawfully vested in the Nagar Panchayat and so it can be said that the claim is laid to this land on behalf of the Panchayat. Thirdly, the defendant claimed this land of its own and asserted that it is not public street and as such vesting in the Panchayat. But it can be said that the plaintiff is laying the claim against the Panchayat. It need not be emphasised because it is common knowledge and well known to all that public street land within the municipal limits are vested by the Government in the concerned local authority. Therefore, the occasion to hold the inquiry under Section 101 was there.
11. Mrs. Mehta then secondly urged that under Section 101(1) only the Collector is the competent authority to hold the inquiry and not the Prant Officer. Even a bare look at Sub-section (3)(a) shows that eve a Deputy Collector can exercise powers conferred by Section 101 of the Act on the Collector.
12. Mrs. Mehta then urged that Section 11 of the Bombay Revenue Jurisdiction Act would not be attracted, She supported her submission firstly on the ground that there was no question of any appeal to be preferred against the decision of the Deputy Collector because no appeal is provided for by Section 101 or any section in the Gujarat Panchayats Act. She said that the inquiry was not under the Land Revenue Code but the inquiry was under the Panchayats Act. This argument stands rebutted by the provisions of Section 101(2) of the Act. It by necessary implication lays down that one or more appeals would lie against the order passed under Section 101(1) or 101 (3), of-course within the period of limitation of one year laid down in the said Section (2). It has also been specified that the appeal shall lie to the authority to which the appeal would lie ordinarily under Section 204 of the Land Revenue Code. It is, therefore, evident that the provisions of Section 204 of the Land Revenue Code by necessary implication are incorporated here for the purpose of appeal. It is, therefore, crystal clear that appeal is provided for by Section 101(2) of the Act. The inquiry as conducted is also deemed to be an inquiry under the Land Revenue Code because Section 10(3)(b) sa s that the said formal inquiry is to be conducted in accordance with the provisions of such inquiry under, the said Act.
13. Mrs. Mehta further urged that Section 11 of the Bombay Revenue Jurisdiction Act, 1876, was not at all attracted to the facts of the present case. To appreciate her contention, I quote below the said section. Her say was that the Dy. Collector conducting the inquiry under Section 101 of the Act could not be said to be a revenue officer referred to in Section 11 above. The term 'revenue officer' has been defined in Section 3.
Section 11-No Civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue officer unless the plaintiff first proves that previously to bringing his suit he has presented all such appeal allowed by the law for the time being in force, as within the period of limitation allowed for bringing such suit, it was possible to present.
Definition of 'Revenue Officer' is as follows:
Revenue-officer means any officer employed in or about the business of the land revenue, or of the surveys, assessment, accounts or records connected therewith.
Mrs. Mehta submitted that the Deputy Collector holding an inquiry under Section 101 cannot be said to be a revenue officer when he is employed for the purposes of that Act. He cannot be said to be a revenue officer employed in or about the business of the land revenue or of surveys, assessment, accounts or records connected therewith. The argument though at first blush attractive and plausible does not stand the close scrutiny. The Collector, the Deputy Collector and the Assistant Collector referred to in Section 101 are the officers as defined and understood in the Land Revenue Code. They are offices having much to do with the land revenue, assessment etc. So the Deputy Collector is certainly an officer dealing with the revenue. Mrs. Mehta emphasised however that while functioning under Section 101, he would not act as a Deputy Collector under the Land Revenue Code. It is not so. He is entrusted with the inquiry under Section 101 because he is the Deputy Collector under the Land Revenue Code and not de hors the Land Revenue Code. He would continue to do various functions under Section 101 together. This inference is inevitable. If under Section 101 he has to decide the claim of land in favour of the Panchayat he by necessary implication concerns himself with land revenue. Lands which are not property of an individual are liable to payment of land revenue as per Section 48 of the Land Revenue Code. If the Deputy Collector holding inquiry under Section 101 and in the manner laid down under Section 37(2) of the Land Revenue Code decides that the land belongs to a private party he would by necessary implication be deciding that land is not liable to pay land revenue. If he decides that it is vested in the Panchayat as per law, he would thereby hold that it is not liable to pay land revenue. Thus all his concern is inextricably interwoven with the land revenue. This argument of Mrs. Mehta therefore does not stand in good stead.
14. In view of this finding of mine, the plaintiff's suit can be said to be rightly dismissed by both the Courts below as per Section 11 of the Bombay Revenue Jurisdiction Act. In view of this finding, it would not be necessary to decide the efficacy of the Parvaoa, Ex. 56, and whether that copy was rightly admissible or not. However, as this question has been agitated before me, I would like to deal with it Ex. 56 purports to be a copy of the Sanad given by the then ruler. Under Section 79 of the Indian Evidence Act, a copy can be presumed to be correctly representing the contents of the original. The question however, is: do the contents of Ex. 56 in any way show that the original Sanad was issued by the then ruler of Idar State? The Sinad does not bear any ssal. The Sanad does not bear any signature of the ruler. Some person whose capacity and character are undisclosed is shown to have signed for the ruler. It is not known whether he had authority to do so or not. It is open to doubt on the face of it. Its contents are supported by the contents of the two Sanads, Ex. 87 and 88, which refer to the part of the suit land as Sariyam (sic). public street land. It is not possible to believe that the ruler would in one breath confer land adjacent to the Swaminarayan temple to the plaintiff's father and then after some time would describe the very land as a street land. This circumstance therefore mikes the sanad open to suspicion in respect of the authenticity of the original Sanad whose certified copy Ex. 56 purports to be.
15. Even if Ex. 56 is held to be representing a genuine document duly issued by the then ruler, the plaintiff's position does not stand ameliorated in any way. The land in question was permitted to be used as an open piece of land and the obvious intention was to keep it open for all purposes so that rights of other people are not adversely affected. The title that can be said to have been conferred at the most can be said to have been conferred for technical purposes leaving the land open for usage to it which was put in three days. Both the Courts below on appreciation of the evidence found that this land was used as a public street. This is esssatially a fiiJiag of fact. Taj plaintiff was obviously acting against his Saaxd wlisn he triad to book this had by cxastruoting some structure thereon.
16. The last argument of Mrs. Mehta deserves to be examined. She said that the judgment in the litigation between the plaintiff on one hand and one Tejaram on the other in the years 1938-39 recognised the plaintiff's right and this was certainly a relevant piece of evidence under Section 13 of the Indian Evidence Act. It cannot be gainsaid that this is a relevant piece of evidence. However, its valua is not much because it is a judgment not between the present parties. Impejsonal State and the Panchayat cannot be said to be even remotely bound by this judgment. I, therefore, hold that this judgment is relevant but I further find that its evidentiary weight in this case in the light of other evidence that has been considered by both the Courts below is practically nill. The result is that the plaintiff's appeal fails and is dismissed with costs.