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Pardi Nagar Panchayat Vs. Khandubhai Dahyabhai Desai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR869
AppellantPardi Nagar Panchayat
RespondentKhandubhai Dahyabhai Desai
Cases ReferredPradhan v. Bombay State Federation of Gaushalas
Excerpt:
.....necessary for me to go into the other questions of merits so far as the claim of the plaintiff is concerned. overlooking this basic distinction between the nature of an application under section 72 of the bombay public trusts act and a suit under section 101 sub-section (2) of the gujarat panchayats act, the learned district judge has come to the conclusion that the period taken for obtaining certified copies of the order should be excluded in computing the period of limitation under section 101 sub-section (2). this conclusion of the learned district judge, therefore, was clearly erroneous and contrary to the provisions of law......panchayat from disturbing him either directly or through some one less, in his possession of the suit lands. it is the case of the plaintiff as set out in bearing survey no. 100 admeasuring 1 acre and 8 gunthas. this is an agricultural plot of land. just touching this survey no. 100 and to the east of the field, there is a small plot admeasuring 2 gunthas and 30-square yards. on this plot there was a well and two trees known as bhinda trees. according to the plaintiff, he had purchased field bearing survey no. 100 and the small plot of land by a registered sale deed dated april 17, 1919 from one banubibi and her husband bannumiya. prior to the sale deed the vendors and their ancestors were in possession of the land. the well had been built by the father of banubibi and according to the.....
Judgment:

B.J. Divan, C.J.

1. The appellant herein is the original defendant and the respondent is the original plaintiff. The suit out of which this Second Appeal arises was filed by the plaintiff in the Court of the learned Civil Judge (Junior Division), Pardi on December 10, 1970. The plaintiff had filed the suit for a declaration that he is the owner of the land bearing Gamthan No. 459 situated within the local limits of defendant Nagar Panchayat, namely, the Pardi Nagar Panchayat, and he is also the owner of the well in the said plot of land and the Bhinda trees grown on the said land. He sought for a permanent injunction restraining the defendant Nagar Panchayat from disturbing him either directly or through some one less, in his possession of the suit lands. It is the case of the plaintiff as set out in bearing Survey No. 100 admeasuring 1 acre and 8 gunthas. This is an agricultural plot of land. Just touching this Survey No. 100 and to the East of the field, there is a small plot admeasuring 2 Gunthas and 30-square yards. On this plot there was a well and two trees known as Bhinda trees. According to the plaintiff, he had purchased field bearing Survey No. 100 and the small plot of land by a registered sale deed dated April 17, 1919 from one Banubibi and her husband Bannumiya. Prior to the sale deed the vendors and their ancestors were in possession of the land. The well had been built by the father of Banubibi and according to the plaintiff, since the date of the purchase, he was in possession of the land and the well and he had planted the Bhinda trees with the aid of water drawn from the well and he was also using the well water for irrigating the land of Survey NO. 100. On December 7, 1962 the plaintiff cut down one of the two trees on the land and on December 8, 1962 the servants of the Nagar Panchayat alleged that he bad encroached upon the land belonging to the Panchayat and thus there was a dispute between the Panchayat on the one hand and the plaintiff on the other as to who was the owner of the small plot of land admeasuring 2 Gunthas and 30 square yards. Under the provisions of Section 101 of the Gujarat Panchayats Act, 1961, the matter was referred to the Collector as the Collector was the competent authority to decide that question. The Assistant Collector, Bulsar, who is also Collector for the purposes of Section 101, held an inquiry and ultimately decided in favour of the panchayat. This order was passed by the Assistant Collector on October 20, 1969. By a letter dated November 12, 1969 the order of the Assistant Collector was communicated to the plaintiff and the communication actually reached the plaintiff on November 13, 1969. On November 18, 1969 the plaintiff applied for certified copies, inter alia of the order passed by the Assistant Collector and on January 30, 1970 the certified copies were received by the plaintiff. Ultimately, the plaintiff filed the suit on December 10, 1970. No notice prior to the institution of the suit, statutory or otherwise, appears to have been given by the plaintiff.

2. One of the contentions raised by the Nagar Panchayat in the written statement was that the suit was barred by limitation and that led to issue No. 4. The learned trial Court Judge held that the suit was barred by limitation. The other issues on merits were also decided by the learned trial Court Judge. The matter was carried in appeal to the District Court, Bulsar at Navsari and the learned District Judge allowed the appeal and set aside the judgment and decree of the trial Court. He held that the suit was not barred by limitation. Thereafter this Second Appeal has been filed by the Pardi Nagar Panchayat. The original defendant, against the judgment and decree of the learned District Judge. In my opinion, the suit was clearly barred by limitation and hence it is not necessary for me to go into the other questions of merits so far as the claim of the plaintiff is concerned.

3. Under Section 101 of the Gujarat Panchayats Act, in any revenue village where any property or any right in or over 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, after formal enquiry of which due notice has been given, to pass an order deciding the claim. Under Sub-section (3) (a) of Section 101 the powers conferred by the section on the Collector may be exercised also by an Assistant or Deputy Collector or by a Survey Officer or such other officer appointed under the Bombay Land Revenue Code. Sub-section (2) of Section 101 is the material provision in this case and it is in these terms.

Any suit instituted in any Civil Court after the expiration of one year from the date of the communication of any order pasted by the Collector under Sub-section (1) ...shall be dismissed (although limitation has not been set up as a defence) if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order, provided that the plaintiff has received due notice of such order.

From what has been stated already in this judgment, it is obvious that the order passed under Section 101 was communicated to the plaintiff on November 1, 1969 and from that date onwards limitation prescribed by Section 101 Sub-section (2) would start running. There is no dispute that doe notice of the order passed under Section 101 was not received. As a matter of fact, as pointed out by the learned Judges in the Courts below the envelope containing the notice bears the postal mark of delivery of November 13, 1969 and that is the date which has been accepted by, both the Courts below as the date on which the order under Section 101 was communicated to the plaintiff.

4. Under Section 29 Sub-section (2) of the Limitation Act, 1963, where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 21 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. The learned District Judge relied on the decision of the Bombay High Court in Pradhan v. Bombay State Federation of Gaushalas 58 Bom. L.R. 894. That decision was delivered in the context of the Bombay Public Trusts Act and the question was whether an application under Section 72 of the Bombay Public Trusts Act was time barred when it was filed in Court. It is obvious when one looks at the provisions of the Bombay Public Trusts Act, that the application under Section 72 is in the nature of an appeal against the decision of the Charity Commissioner or the Assistant Charity Commissioner, as the case may be. It is not a suit of the type which is contemplated under Section 101 Sub-section (2) of the Gujarat Panchayats Act. When an appeal or application or proceeding by way of an appeal or application is provided for by any special or local law, the provisions of Section 12(2) of the Limitation Act, 1963 would apply unless the application of Section 12(2) has been specifically excluded by the special or local law. The learned District Judge is right when he says that the provisions of Section 12(2) of the Limitation Act have not been excluded by the Gujarat Panchayats Act. However he has with great respect to him committed an error in overlooking the fact that Section 12(2) speaks of exclusion of time for certified copies when the period of limitation for an appeal or application for leave to appeal or for revision or review of a judgment are being talked about. The provisions of Section 12(2) of the Limitation Act do not in terms apply to a suit. Overlooking this basic distinction between the nature of an application under Section 72 of the Bombay Public Trusts Act and a suit under Section 101 Sub-section (2) of the Gujarat Panchayats Act, the learned District Judge has come to the conclusion that the period taken for obtaining certified copies of the order should be excluded in computing the period of limitation under Section 101 Sub-section (2). This conclusion of the learned District Judge, therefore, was clearly erroneous and contrary to the provisions of law.

5. Section 5 of the Limitation Act, 1963 does not apply to suits because sufficient cause for not filing an appeal or application other than an application under any of the provision of the Code of Civil Procedure can be granted by a Court on sufficient cause for the delay being made out. No other provision of Sections 4 to 24 (both inclusive) of the Limitation Act, 1963 has been brought to my notice in this connection and, therefore, it is obvious that not with standing the provisions of Section 29(2), since there is nothing in the Limitation Act which can help the plaintiff in getting that time excluded in computing the period of limitation for filing the suit as prescribed by Section 101 Sub-section (2), it must be held that the suit of the plaintiff was barred by limitation.

5.1. It is obvious that so long as the order of the Assistant Collector under Section 101 Sub-section (1) holding that the land belonged to the Panchayat stood unreserved, any declaration of title in favour of the plaintiff by a Civil Court would be inconsistent with that order and under Section 101 Sub-section (2), if the relief claimed in the suit is inconsistent with the order passed under Section 101 Sub-section (1), the suit attracts the period of limitation prescribed by Sub-section (3) of Section 101.

6. In view of these conclusions it is obvious that the suit was barred by limitation and with great respect to the learned District Judge, it must be held that he was in error when he held to the contrary. This Second Appeal is, therefore, allowed and the judgment and decree of the learned District Judge are set aside. The judgment and decree of the trial Court are restored and the suit must be held to be barred by limitation and hence the learned trial Judge was right in dismissing the plaintiff's suit inter alia on the ground of limitation. The plaintiff must pay the defendant's costs all throughout.


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