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Satwara Karsan Sava Vs. Satwara Jetha Karsan and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Judge
Reported in(1974)15GLR142
AppellantSatwara Karsan Sava
RespondentSatwara Jetha Karsan and ors.
Cases ReferredBallappa Bhimappa and Ors. v. Trippangowda Basangowda and Ors.
Excerpt:
.....time-barred at the threshold in view of the holding of the court on a preliminary issue that the period of limitation is three years under article 47 and not six years under article 120. 2. the relevant facts are not in dispute. the plaintiff appealed unsuccessfully. that article 14 is not applicable is a proposition of law which has held good for more than 40 year and it is not canvassed even now by the other side that article 14 would be applicable. (b) to give immediate possession of any lands or premises used for agriculture or grazing, or trees, or crops, or fisheries, or to restore the use of water from any well, tank, canal or water course, whether natural or artificial used for agricultural purposes to any person who has been dispossessed or deprived thereof otherwise than due..........47 applies or whether article 120 applies. now article 47 is in the following terms:description of suit period of time from which period limitation. begins to run.47. by any person bound by an order three years the date of the finalrespecting the possession of immove- order in the case.able property made under the codeof criminal procedure, 1898, orthe mamlatdars' courts act, 1906,or by any one claiming under suchperson, to recover the propertycomprised in such order. 'it relates to suits arising out of an order respecting possession of immovable property made either under the code of criminal procedure or under the mamlatdars' courts act. we need not examine the position as regards the code of criminal procedure as in the present matter we are concerned with an order passed under the.....
Judgment:

M.P. Thakkar, J.

1. Three years under Article 47 or six years under Article 120 (of the Indian Limitation Act of 1908) - which of the two is the period of limitation governing the suit giving rise to this appeal is the problem confronting us in this reference. It arises out of an action undertaken by a party against whom an injunction under Section 5(2) of the Mamlatdars' Courts Act was previously issued restraining the party concerned from obstructing the use of roads or customary ways etc. The reference arises out of a second appeal by an unsuccessful plaintiff whose suit has been dismissed as time-barred at the threshold in view of the holding of the Court on a preliminary issue that the period of limitation is three years under Article 47 and not six years under Article 120.

2. The relevant facts are not in dispute. There was a dispute between the appellant-plaintiff and respondents defendants Nos. 2 and 5 with regard to a right of way to pass through S. No. 198 belonging to the plaintiff. It appears that the plaintiff denied the right claimed by defendants Nos. 2 and 5 and obstructed them from passing through his field. Thereupon present defendants Nos. 2 and 5 instituted a suit under the Mamlatdars' Courts Act of 1906. The Mamlatdar granted an injunction and restrained the plaintiff from obstructing them from passing through the field in question. This order was passed in exercise of powers under Section 5(2) of the Mamlatdars' Court Act. The plaintiff appealed unsuccessfully. The order of the Mamlatdar was confirmed on February 24, 1959. Before the expiry of six years therefrom, under the circumstances, the plaintiff instituted the suit giving rise to the present appeal on February 22, 1965. It was contended by the defendants that the question of limitation was governed by Article 47 of the Indian Limitation Act of 1908 (which prescribes a period of three years) and the suit was barred having regard to the law laid down in Ballappa Bhimappa and Ors. v. Trippangowda Basangowda and Ors. : AIR1931Bom256 . The learned single Judge before whom the matter came up did not agree with the ratio of Ballappa's Case and made a reference to a Division Bench.

3. Now, the question which has been pointedly raised before us was never before the learned single Judge who decided Ballappa's Case (supra). In that case it was being canvassed on behalf of the plaintiff that Article 47 of the Limitation Act (which provided for a period of three years) was applicable whereas the rival contention on the part of the respondents-defendants was that Article 14 (which provided for a period of one year) was applicable to a suit of such a nature. Whether Article 47 was applicable or Article 120 of the Limitation Act of 1908 was applicable was not the question before the Court. In a way, therefore, Ballappa's Case is no authority for the proposition that Article 47 of the Indian Limitation Act of 1908 governs a suit of the present nature and not Article 120 thereof. The competition was between two viewpoints-one which propounded that Article 47 governed a suit of this nature and other which propounded that Article 14 governed such a suit. As the plaintiff himself was canvassing that a period of three years under Article 47 was available to him, no question arose as to whether Article 120 which provides for a longer period of six years was applicable. The point raised before us was thus not directly in issue between the parties in the said matter. Besides, in our opinion, on a true interpretation of Article 47 it is not possible to hold that a suit of the present nature will be governed by the said Article as we shall presently show.

4. On one point there is no dispute viz. that Article 14 of the Indian Limitation Act cannot and does not apply. It has been so decided in Ballappa's Case, and in our opinion (saying so with respect) rightly. We need not, therefore, detain ourselves in the examination of the question as to whether or not Article 14 is applicable. That Article 14 is not applicable is a proposition of law which has held good for more than 40 year and it is not canvassed even now by the other side that Article 14 would be applicable. In our opinion, the view taken by the learned single Judge that Article 14 cannot apply is unexceptionable. We must, therefore, immediately turn to the question as to whether Article 47 applies or whether Article 120 applies. Now Article 47 is in the following terms:

Description of suit Period of Time from which period

limitation. begins to run.

47. By any person bound by an order Three years The date of the final

respecting the possession of immove- order in the case.

able property made under the Code

of Criminal Procedure, 1898, or

the Mamlatdars' Courts Act, 1906,

or by any one claiming under such

person, to recover the property

comprised in such order. '

It relates to suits arising out of an order respecting possession of immovable property made either under the Code of Criminal Procedure or under the Mamlatdars' Courts Act. We need not examine the position as regards the Code of Criminal Procedure as in the present matter we are concerned with an order passed under the Mamlatdars' Courts Act of 1906. The critical question, therefore, is whether the present is a suit by a person bound by an order respecting possession of immovable property passed under the Mamlatdars' Courts Act of 1906.

5. The next logical step is to examine the provisions of the Mamlatdars' Courts Act with the end in view to ascertain under what provision an order respecting possession of immovable property can be passed under the Mamlatdars' Courts Act of 1906. The powers of the Mamlatdar's Court are defined by Section 5 of the said Act. Section 5(1) has been divided into two parts. The first, which is in the following terms, cannot apply to a suit of the present nature for the reason that it relates only to suits of the nature contemplated by it in regard to impediments to the natural flow of water in a defined channel or otherwise or to impediments to any surface waters:

5. (1) Every Mamlatdar shall preside over a Court, which shall be called a Mamlatdars' Court, and which shall, subject to the provisions of Sections 6 and 26, have power, within such territorial limits as may from time to time be fixed by the State Government,

(a) to remove or caused to be removed any impediment, erected otherwise than under due authority of law, to the natural flow in a defined channel or otherwise of any surface water naturally rising in or falling on any land used for agriculture, grazing, trees or crops, on to any adjacent land, where such impediment causes or is likely to cause damage to the land used for such purpose or to any such grazing, trees or crops thereon;'.

In the present case we are not concerned with such a suit. We are concerned with the obstruction made in regard to a right of way. The second part of Section 5(1) is embodied in Clause (b). It is in the following terms:

(b) to give immediate possession of any lands or premises used for agriculture or grazing, or trees, or crops, or fisheries, or to restore the use of water from any well, tank, canal or water course, whether natural or artificial used for agricultural purposes to any person who has been dispossessed or deprived thereof otherwise than due course of law, or who has become entitled to the possession or restoration thereof by reason of the determination of any tenancy or other right of any other person, not being a person who has been a former owner or part-owner, within a period of twelve years before the institution of the suit of the property or use claimed, or who is the legal representative of such former owner or part-owner:

It is clear enough that Clause (b) empowers the competent authority to give immediate possession of lands or premises etc. in case the conditions for the exercise of such powers as contemplated by the provision exist. In the present case the dispute arose not in regard to possession of any property. It arose because the plaintiff offered an obstruction to the defendants Nos. 2 and 5 and prevented them from passing through their field. And it is not in dispute that the injunction which was granted in favour of present defendants Nos. 2 and 5 against the plaintiff was under Sub-section (2) of Section 5 which reads as under:

(2) The said Court shall also, subject to the same provisions, have power within the said limits, where any impediment referred to in Sub-section (1) is erected, or an attempt has been made to erect it, or, when any person is otherwise than by due course of law disturbed or obstructed, or when an attempt has been made so to disturb or obstruct any person in the possession of any lands or premises used for agriculture or grazing, or trees, or crops, or fisheries, or in the use of water from any well, tank, canal or water-course, whether natural or artificial, used for agricultural purposes, or in the use of roads or customary ways thereto, to issue an injunction to the person erecting or who has attempted to erect such impediment, or causing, or who has attempted to cause, such disturbance or obstruction, requiring him to refrain from erecting or attempting to erect any such impediment or, from causing or attempting to cause any further such disturbance or obstruction.

6. There is no other provision under which the injunction could have been granted. On an examination of the scheme of Section 5 it is manifestly clear that an order in regard to possession can be passed under Section 5(1)(b) whereas an order granting injunction can be issued under Section 5(2). The suit giving rise to the present appeal has its roots in a dispute in the course of which an injunction was granted under Section 5(2) of the Mamlatdars' Courts Act against the plaintiff. It is thus evident that this is not a suit arising from an order binding the plaintiff in regard to the possession of immovable property. It arises in connection with an injunction granted by the Mamlatdar under the Mamlatdars' Courts Act. Now, if we return to Article 47 of the Limitation Act, it will become abundantly clear that it has in its contemplation suits respecting possession of immovable property under the Mamlatdars' Courts Act and not suits arising on account of an order granting injunction. It will be recalled that an order regarding possession can be passed under Section 5(1) and not under Section 5(2) of the Mamlatdars' Courts Act. The present is an order passed under Section 5(2) for injunction to which Article 47 cannot apply. It was urged by counsel for the respondents- defendants that the expression 'order respecting the possession of immoveable property' is elastic enough to govern orders for injunctions passed under the Mamlatdars' Courts Act. Now, the Mamlatdars' Courts Act contemplates two types of orders, one respecting the possession of immoveable property and the other in regard to injunctions restraining a party from obstructing a right of way claimed by his opponent. If Article 47 does not apply (as we are inclined to hold) the residuary Article 120 will apply and a person complaining of an order passed under the Mamlatdars' Courts Act will get a period of limitation of six years instead of a period of limitation of three years. There is no compulsion to take the view suggested by counsel for the respondents which is not warranted by the plain language of the Article in order to bring about a position which will curtail the period of limitation. Surely the bar of limitation cannot be construed in an elastic fashion (as suggested) in order to defeat the plaintiff's case otherwise than on merits and thus to scuttle the cause of justice. If two views are possible, equally possible, there is good and sound principle in benevolently smiling upon the one which keeps open the door to a decision on merits and in frowning upon the one that forecloses such a decision on merits. We are, therefore, of the opinion that Article 47 applies to suits by parties bound by an order respecting the possession of immovable property either under the Code of Criminal Procedure or under the Mamlatdars' Courts Act Section 5(1)(b) It will not apply to actions instituted by persons bound by orders for injunctions passed under Section 5(2). We, therefore, hold that the learned trial Judge was in error in dismissing the plaintiff's suit on the ground that it was barred by limitation. We must also incidentally observe that the learned Judge could not have dismissed the suit as against the other defendants even assuming that he was right in taking the view that the suit as against defendants Nos. 2 and 5 was barred by limitation.

7. In the result, we allow the appeal, set aside the decree and order passed by the trial Court dismissing the plaintiff's suit, and direct that the matter shall now go back to the trial Court for proceeding further in accordance with law on merits. Having regard to the fact that the dispute has its roots in an order passed by the competent authority under the Mamlatdars' Courts Act way back in 1959, the matter deserves to be expedited by the trial Court. The trial Court is, therefore, directed to dispose of the matter with expedition preferably within six months. In the circumstances of the case, the parties will bear their own costs throughout.


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