Chabaji Balaji - Since Deceased vs Gujarat Revenue Tribunal on 9 May, 2018

[Cites 43, Cited by 0]

Gujarat High Court

Chabaji Balaji - Since Deceased vs Gujarat Revenue Tribunal on 9 May, 2018

Bench: J.B.Pardiwala

      C/SCA/14696/2016                                         CAV JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 14696 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE J.B.PARDIWALA

==========================================================

1    Whether Reporters of Local Papers may be allowed to                YES
     see the judgment ?

2    To be referred to the Reporter or not ?                            YES

3    Whether their Lordships wish to see the fair copy of the           NO
     judgment ?

4    Whether this case involves a substantial question of law           NO
     as to the interpretation of the Constitution of India or any
     order made thereunder ?

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                     CHABAJI BALAJI - SINCE DECEASED
                                 Versus
                       GUJARAT REVENUE TRIBUNAL
==========================================================
Appearance:
BHARTI N WADHWANI(6134) for the PETITIONER(s) No.
1,1.1,1.1.1,1.1.2,1.1.2.1,1.1.2.2,1.1.2.3,1.1.2.4,1.1.2.5,1.1.3,1.1.4,2,2.1,2.2,2.
3,2.4,2.5,2.6,2.7,2.8
MR MIHIR THAKORE, SENIOR ADVOCATE WITH MR VIMAL A
PUROHIT(5049) for the PETITIONER(s) No.
1,1.1,1.1.1,1.1.2,1.1.2.1,1.1.2.2,1.1.2.3,1.1.2.4,1.1.2.5,1.1.3,1.1.4,2,2.1,2.2,2.
3,2.4,2.5,2.6,2.7,2.8
DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No. 5
MR UTKARSH SHARMA, AGP (1) for the RESPONDENT(s) No. 1,2,3,4
MR MC. BHATT, SENIOR ADVOCATE WITH MR JIGAR P RAVAL(2008) for
the RESPONDENT(s) No. 10,11,12,6,8,9
MR PRANAV S DAVE(5104) for the RESPONDENT(s) No. 5.1,5.2,5.3,5.4,6
MR SHIVANG M SHAH(5916) for the RESPONDENT(s) No. 5.1,5.2,5.3,5.4,6
NOTICE NOT RECD BACK(3) for the RESPONDENT(s) No. 5.5,5.6,5.7,5.8,7
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 5.1,5.2,5.3,5.4,6




                                    Page 1 of 50
        C/SCA/14696/2016                                                CAV JUDGMENT




    CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
 
                                Date : 09/05/2018 
                                 CAV JUDGMENT

1. By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 09/10/2015 passed by the Gujarat Revenue Tribunal in the Revision Application No.TEN.BA.244 of 2015, by which, the Tribunal rejected the revision application filed by the applicants herein, thereby, affirming the order passed by the Deputy Collector, dated 04/06/2014 in the Tenancy Case No.64 of 2012 as well as the order dated 25/11/1977 passed by the Mamlatdar & ALT in the Tenancy Case No.19 of 1977.

2. The facts of this case as pleaded in the application are as under: 2.1 It is respectfully stated and submitted that what transpires from the revenue record made available to the petitioners is such that the land bearing survey no.891 admeasuring hectare 1.40.63 sq. mtrs., survey no.896 admeasuring hectare 1.32.52 sq. mtrs, survey no.897 admeasuring hectare 1.33.55 sq.mtrs. of village Vastral, Tal: Daskroi (old), Vatva (new), Dist. Ahmedabad (hereinafter referred to as the "land in question") is in occupation, possession and cultivation of the petitioners and before the same, was cultivated by the ancestors of the present petitioners in the capacity of the tenant of the land in question.

2.2 It further transpires from the revenue record that one Shri Shayamrai Bhagvanrai Munshi was Inamdar of the land in question. It is not in dispute that the village was (Inam village).

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2.3 It is submitted that upon coming into force of the Bombay Personal Inam Abolition Act, 1952, by Virtue of provision of the said Act, all the Inami Lands vested into State Government without any encumbrances. It is further submitted that as per the scheme of the Act, upon implementation of Bombay Personal Inam Abolition Act, 1952, the rights of the Inamdar gets extinguished and as per the provision of scheme of the Act, rights ascertained by the Inamdar as well as occupant which are in actual physical possession and cultivation in their respective capacity, by way of formal inquiry, are required to be declared as occupant or in other words the capacity as well as quantum of the assessment which was priorly paid to the Inamdar. It is submitted that in the Vastral village also, upon implementation of the Bombay Personal Inam Abolition Act, 1952, all the lands which were now occupation and possession of the then Inamdar, vested into State Government Without any encumbrances.

2.4 It is respectfully stated and submitted that hence in the year 1946, all the rights, title and interest over the land in question as far as Inarmdar was concerned, got extinguished and same came to be transferred/vested with the landlord Dahyabhai Parmar and thereafter the same was absolute owner of the land in question and which ancestors of the petitioners was in physical possession and cultivation in the capacity of the tenant.

2.5 It is submitted that in fact, the ancestors of the land in question cultivated the same personally since before 1945 in the capacity of the tenant/occupant of Inamdar. It is submitted that at the relevant time, the share in crop was also shared with Inamdar and after 1946 in the capacity of the tenant of one Shri Dahyabhai Page 3 of 50 C/SCA/14696/2016 CAV JUDGMENT Pragjibhai Parmar - landlord. It is submitted that at the relevant time, the share in crop was also shared with landlord Dahyabhai Parmar and the relation between the ancestors of the petitioners and the landlord - Dahyabhai Parmar was as of tenant and landlord. It is submitted that however upon implementation of the Bombay Personal Inam Abolition Act, 1952. It is submitted that as per the provisions of the Bombay Personal Inam Abolition Act, 1952, name of the Dahyabhai Pragjibhai Parmar was mutated in the revenue record as occupant of the land in question by virtue of entry no.100.

2.6 It is respectfully stated and submitted that erroneously the land in question was vested in State Government, without any encumbrances, by virtue of section 7 of the Bombay Personal Inam Abolition Act, 1952. The mutation entry reflecting the fact of vesting the land into State Government by entry no.211.

2.7 It is submitted that the aforesaid possession continued for considerable period but however in the interregnum period as mentioned herein above, Bombay Personal Inam Abolition Act, 1952 came to be introduced and was made effective from 1953 and as stated herein above erroneously land vested into State Government and therefore, the rights of the ancestor of the petitioner could not be ascertained under the provision of Section 32G of the Bombay Tenancy and Agricultural Act, 1948. It is submitted that it is an admitted position of fact that ancestor of the petitioners was cultivating the land in question as on 1.4.1957 and therefore, by virtue of the implementation of the Bombay Tenancy and Agriculture Land Act, 1948, the ancestor of the petitioners had acquired the status of the "deemed tenant" and therefore, only purchase price was Page 4 of 50 C/SCA/14696/2016 CAV JUDGMENT required to be fixed. It is submitted that but however unfortunately because of the erroneously vesting of the land into State Government by virtue of the implementation of the Bombay Personal Inam Abolition Act, 1952, the said proceedings could not have been commenced under the Tenancy Act in favour of the petitioners. It is submitted that however the ancestors of the petitioners continued to cultivate the land in question without any hindrance.

2.8 It is submitted that thereafter being aggrieved and dissatisfied by the arbitrary action on the part of the State Government, the landlord Dahyabhai Pragjibhai Parmar instituted a Civil Suit being No.483 of 1969 seeking declaration against the State Government that the land in question are wrongly vested into State Government and for declaration that the Dahyabhai Pragjibhai Parmar is an owner and occupier of the land in question by virtue of the registered sale deed executed in his favour in the year 1946. Several other reliefs were also prayed for including prayers that the ancestors of the petitioners does not have any right, title and interest over the land in question and the possession of the same was handed over to the plaintiff (Dahyabhai Parmar) and restrained the ancestors of the petitioners entering into the suit land.

2.9 It is respectfully stated and submitted that the ancestor of the petitioners were joined as defendant nos.1 and 2. It is submitted that upon receipt of the summons from the competent Civil Court, the ancestors of the petitioners filed written statement opposing averment made in the plaint. In the written statement also, it was categorically stated that the land in question is in possession and cultivation with the ancestors of the petitioner in the capacity of the Page 5 of 50 C/SCA/14696/2016 CAV JUDGMENT tenant of the landlord - Dahyabhai Parmar, meaning thereby the relation between landlord and tenant were disclosed. It is respectfully stated and submitted that primarily the dispute of the plaintiff was with the State Government and the main grievance was against vesting the land into State Government. However, the State Government also filed its written statement opposing the averment made in the plaint.

2.10 It is respectfully stated and submitted that since the issue of cultivating the land in the capacity of "tenant" was raised by the ancestor of the petitioners, reference came to be made by the learned Civil Court under the provision of Section85A of the Bombay Tenancy and Agricultural Land Act. Section85A of the Tenancy Act reads as under:

85A. Suits involving issues required to be decided under this Act:

(1) If any suit instituted, whether before or after the specified date, in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the "competent authority") the Civil Court shall stay the suit and refer such issues to such competent authority for determination.

(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.

2.11 It is respectfully stated and submitted that the said reference was addressed to the learned Mamlatdar and ALT, Dascroi. It becomes pertinent to note here that the reference made by the learned Civil Court to the learned Mamlatdar was with respect to decide the issue as to whether the ancestors of the petitioner is Page 6 of 50 C/SCA/14696/2016 CAV JUDGMENT "tenant" of the land in question or not. The learned Mamlatdar and ALT in response to the said reference, registered Tenancy Case being No.19 of 1977. It is submitted that in the said proceedings, the statement were recorded on other by the learned Mamlatdar and ALT of all the concerned party including landlord i.e.present private respondent. It becomes pertinent to note here that the landlord categorically admitted that the claim of the ancestor of the petitioners and thereby made a statement on oath that the land in question is purchased by them in the year 1946 by virtue of the registered sale deed and same is in occupation and physical possession of the tenant i.e.Chabaji Balaji and said Chabaji Balaji i.e. ancestors of the petitioners is cultivating the land in the capacity of the tenant. It is submitted that the statement of the tenant Chabaji Balaji was also recorded wherein the claim of being tenant was reiterated.

2.12 It is respectfully stated and submitted that after hearing the rival parries as well as recording the statement of the landlord as well as tenant, the learned Mamlatdar and ALT was of the opinion that it seems that the aforesaid statements are recorded in collusion with one another i.e. landlord and tenant and therefore, their version is not trustworthy. The learned Mamlatdar and ALT was further pleased to record that land in question is vested into State Government by virtue of implementation of the Bombay Personal Inam Abolition Act, 1952 is running in the name of State Government and therefore, there cannot be any tenant of the land in question which belongs to the State Government. It is submitted that aforesaid observations and directions, the learned Mamlatdar and ALT, Dascroi was pleased to hold and declare vide order dated Page 7 of 50 C/SCA/14696/2016 CAV JUDGMENT 25.11.1977 that ancestors of the petitioners i.e. Chabaji Balaji is not tenant of the land in question.

2.13 It is respectfully stated and submitted that the entire chronology of events if keenly perused which commenced before the the learned Mamlatdar and ALT, it clearly transpires that the Mamlatdar and ALT had acted in a bias manner and ignoring the statutory provision of the Tenancy Act even though the revenue record reflecting the fact that tenant was cultivating the land in question in the capacity of the tenant even before the 1946 and also landlord was in conformity with the said fact, in an absolute illegal, unjustified and arbitrary manner, observed that the said statement are made in collusion with each other and same cannot be believed. The Mamlatdar and ALT was further committed an error while observing that land belongs to the State Government and there cannot be a tenant of the land of which the State Government is owner.

2.14 It is respectfully stated and submitted that the poor tenant was helpless against the mighty State Government and therefore, had no other recourse then to wait for the disposal of the suit, in which, a declaration was sought by the landlord that he is the owner by virtue of registered saledeed since unless and until the land is declared to be of private ownership, the ancestor of the petitioner could not place it claims of being a tenant and therefore, waited for the ultimate outcome of the suit.

2.15 It is submitted that thereafter the civil suit was sine die and there was absolutely no movement in the said Proceedings until Page 8 of 50 C/SCA/14696/2016 CAV JUDGMENT 2009. It reflects that from the year 1977 till 2009 i.e. for a period of 32 years there was an absolute no proceedings which had taken place in the civil suit and on the other hand, the petitioners were also not in hurry since unless and until the landlord of whom the ancestors of the petitioners cultivator was declared as a owners and unless and until name of the State Government is deleted, however proceedings claiming tenancy rights could not have been commenced. It is submitted that in such view of the matter, the entire proceedings were allowed till 2009 but surprisingly on or around August 2009, the petitioners were in receipt of the summons from the competent civil Court. It is submitted that at that time, Chabaji Balaji had expired and suit was of the year 1969 and therefore, the petitioners were neither having any record nor any knowledge with respect to said suit. As stated above, the petitioners belong to economically and socially downtrodden class of society and because of the ignorance of law and more particularly, time span i.e. more than 3 decades which had passed, were in reply to gather any information or to take paper from the lawyer who was engaged by their father Chabaji Balaji and therefore, could not appear in time before the Civil Court for a couple of months. It is submitted that when gathered with some information and instruction, approached the Civil Court, to the utter shock and surprise know that the said suit was found to be decided exparte. It was not only matter of shock but also surprise to the petitioners that the suit which was lying idle for more than three decades had commenced within three months of its revival and no any effective opportunity was granted to the petitioners to represent their case. It is submitted that thereafter upon availing necessary instruction as well as necessary papers, the petitioners were brought to the knowledge that by virtue of the exparte decree the Page 9 of 50 C/SCA/14696/2016 CAV JUDGMENT landlord Dahyabai Pragjibhai Parmar was declared as owner of the land in question by virtue of the registered sale deed and learned Civil Court was further pleased to hold and declare that vesting of the land into State Government, was erroneous. It is submitted that however till the said observations and directions the petitioners had no grievance but as far as issue no.4 was concerned, in an absolute illegal, unjustified manner, the learned Civil Court decided the said issue against the petitioners holding that the reference which was addressed to the Mamlatdar and ALT was answered in negative and learned Mamlatdar and ALT did not hold it fit to consider the status of the petitioner as "tenant" of the land in question. However, the aspect which was totally ignored was such that the learned Mamlatdar at the relevant time did not consider the ancestors of the petitioners as "tenant" of the land in question only considered the fact that land was vested into State Government and even at the time of deciding such reference the owner of the land was reflected as State Government and therefore, the learned Mamlatdar and ALT was of the opinion that there cannot be "tenant" of the land of whom the owner is State Government.

2.16 It is respectfully stated and submitted that petitioners having no other recourse, preferred an appeal before the learned Deputy Collector challenging the order passed by the learned Mamlatdar dated 25.11.1977 being Tenancy Case No.19 of 1977. It is submitted that said appeal came to be numbered as Ganot Appeal Case No.64 of 2012. It is submitted that in the said appeal petitioners clearly and categorically stated that there had occurred delay in preferring the said appeal but the same was not deliberate and no fruitful purpose would have served and even if the appeal Page 10 of 50 C/SCA/14696/2016 CAV JUDGMENT was preferred at the relevant time since the reasons for rejection of the claim was on the basis that the land was reflecting in the name of State Government and therefore, unless and until the suit is decided in favour of plaintiff Dahyabhai Parmar and till he is declared as "owner" of the land in question, the petitioners would not be in a position to claim its tenancy rights or seek declaration against the State Government. However, upon passing of the aforesaid decree declaring the Dahyabhai Pragjibhai Parmar is owner, the aforesaid appeal came to be filed.

2.17 It is submitted that however without considering any of the aforesaid facts including the fact that in the principal proceedings before learned Mamlatdar and ALT, the landlord himself had accepted the status of the petitioner as "tenant" of the land in question, the said appeal came to be rejected on the ground of delay and latches. It seems that the learned Deputy Collector did not to understand the controversy involved in the matter and therefore, merely on hyper technical ground of delay and laches appeal came to be dismissed vide order dated 04.06.2014.

2.18 It is submitted that against the said order passed by the learned Deputy Collector, the petitioners preferred Revision Application before the Gujarat Revenue Tribunal, which came to be numbered as TEN.BA.244 of 2015.

2.19 It is submitted that along with memo of revision, the petitioners also filed an application for grant of interim relief. It is submitted that upon hearing, the learned Gujarat Revenue Tribunal was pleased to grant interim relief in favour of the petitioners. It is Page 11 of 50 C/SCA/14696/2016 CAV JUDGMENT pertinent to note here that delay caused in preferring the revision application was also condoned at the relevant time.

2.20 It is submitted that when served with the copy of the ad interim relief granted by the learned Gujarat Revenue Tribunal, the private respondents herein i.e. legal heirs of landlord Dahyabhai Pragjibhai Parmar also preferred an application for vacating the ad interim relief granted by the Gujarat Revenue Tribunal.

2.21 It is submitted that the petitioners have also filed the written statement. It is submitted that however it seems that in great haste proceedings has commenced and respondent no.1 vide order dated 09.10.2015 was pleased to hold and declare that the orders passed by the learned Mamlatdar and ALT as well as learned Deputy Collector are just and proper and required no interference. Hence, in view of the above, revision application filed by the petitioners came to be rejected and orders passed by the learned Deputy Collector as well as Mamlatdar and ALT came to be confirmed.

3. Thus, the picture that emerges from the materials on record is that against the concurrent findings of three revenue authorities, the applicants are here before this Court with this application under Article 227 of the Constitution of India.

4. The dispute is in respect of land bearing survey no.891 admeasuring 14063 sq. mtrs., survey no.896 admeasuring 13252 sq. mtrs., survey no.897 admeasuring 13355 sq.mtrs. situated at Village Vastral, TalukaDaskroi (old), Vatva (new), Dist. Ahmedabad.

Page 12 of 50 C/SCA/14696/2016 CAV JUDGMENT

5. The above referred parcels of land were owned by one Shri Shayamrai Bhagvanrai Munshi. Shri Munshi happened to be the Inamdar. On 18/06/1946, Dahyabhai Pragjibhai Parmar purchased the above three parcels of land from Shri Munshi by a registered saledeed. On 20/06/1953, the Bombay Personal Inam Abolition Act, 1952 came into operation. On 01/12/1956, an entry no.100 came to be mutated in the revenue record regarding the saledeed of Dahyabhai Pragjibhai Parmar. On 01/12/1956 an entry no.211 came to be mutated in the revenue record on the basis of the provisions of the Section7 of the Inam Abolition Act, 1952, in which, the above referred three survey numbers of the land were included.

6. On 05/09/1969, Dahyabhai Pragjibhai Parmar instituted a Regular Civil Suit No.483 of 1969 against the State of Gujarat in the Court of the Civil Judge, Senior Division, Ahmedabad (Rural) for a declaration and permanent injunction. The reliefs prayed for in the said civil suit are as under: A) for a declaration that the plaintiffs are the owners of the above mentioned land and Government has got no right, title or interest over the said land and for a permanent injunction restraining the State of Gujarat and its officers from disposing the said land from whatever manner and also for damages suffered by the plaintiff for the illegal act of the State.

B) For the costs of the suit and the costs of the Notice which is taxed at Rs.51/.

C) For a declaration that the Defendants Nos.1(a) to (f) and 2 have got no right, title and interest over the suit land and for a permanent injunction restraining the Defendant nos.1 and 2 from entering the said land and for handing over vacant possession of the said land to the plaintiffs.

D) For such other relief or reliefs that are available to the plaintiffs looking to the facts and circumstances of the case.

Page 13 of 50 C/SCA/14696/2016 CAV JUDGMENT

7. The predecessors of the present petitioners filed their written statement in the suit vide Exh.14 and raised the contention as regards the tenancy.

8. The order passed by the Civil Judge, S.D., Ahmedabad (Rural) at Narol, dated 02/11/1976 is under: No.549 of 1976 Civil Judge's Court, S.D. Ahmedabad (Rural) at Narol.

Date: 02111976 To, The Mamlatdar, Daskroi.

      Subject:         Finding on issue.
                        Regular Civil Suit No.483/69.
                        Plff.: Dahyabhai Pragjibhai & Others
                        Vs.

Defts: Heirs of deceased Chhabaji Balaji & Others 1/1. Chanduji Chhabaji & Others.

Sir, I have the honour to state that defendant Nos.1 and 2 have given application to refer the issue of Tenancy for determination in the above suit. (Copy of plaint, Written statement filed by defendants Nos.1 and 2 & Copy of issues).

You are, therefore requested to decide the following issue u.s.85A of Bombay Tenancy and Agri. Lands Act, as this Court has no jurisdiction to decide the same.

Issue No.4: Whether the defendants Nos.1 and 2 prove their status as tenants of suit lands since 194445?

Hence, the above issue is referred to your for finding. You are requested to send your decision on the above issue at an early date.

Encl.: 1. Copy of plaint.

2. Copy of written statement Exh.14 Yours faithfully,

3. Copy of issue.

Civil Judge, S.D., Narol.

Page 14 of 50 C/SCA/14696/2016 CAV JUDGMENT

9. The Court concerned by order dated 02/11/1976 referred the issue regarding the tenancy to the Mamlatdar and ALT, Daskroi. The Mamlardar and ALT, Daskroi, by his order dated 25/11/1977 rejected the claim of the petitioners regarding the tenancy.

10. On 12/03/2008, the present petitioners preferred Civil Suits Nos.162; 163 and 164 of 2008 respectively in the Court of the Principal Senior Civil Judge, Ahmedabad (Rural) as regards the above referred three parcels of the land against the State of Gujarat for a declaration that they had become owners of the land by way of adverse possession. In the said suits, an application Exh.5 was also filed for injunction. The Exh.5 application in all the three suits came to be rejected by the learned Civil Judge by an order dated 14/05/2009.

11. On 30/04/2010, the Civil Court, Ahmedabad allowed the suit of Dahyabhai Pragjibhai [respondent no.5] and declared him as the owner of the subject lands.

12. On 05/06/2010, the respondents nos.8 to 12 herein purchased the said land from Dahyabhai Pragjibhai Parmar.

13. On 04/09/2012, the petitioners herein preferred the Tenancy Appeal No.64 of 2012 along with an application for condonation of delay of 32 years.

14. On 04/06/2014, the Deputy Collector dismissed the above referred appeal.

15. On 15/07/2015, the petitioners herein preferred the Revision Application No.244 of 2015 before the Gujarat Revenue Tribunal with Page 15 of 50 C/SCA/14696/2016 CAV JUDGMENT an application for condonation of delay of 08 months in filing the revision application.

16. The revenue tribunal by its order dated 09/10/2015 rejected the revision application. The impugned order passed by the Tribunal is extracted hereunder: The impugned order passed by the tribunal: Now, the fact is that, the applicants have argued that, their ancestors had been cultivating the said land under tenancy right and after the death of their ancestors, they have been cultivating them. By submitting such, they claim their tenancy right in the said lands. To support their arguments, they have produced the evidence of form No. 7/12 of the PaniPatrak for the year 1956

57. Now, it is the fact that, as discussed above, prior to the Personal Inam Abolition Act came in force i.e. before 01/08/1955, the said lands alongwith other lands remained waste and uncultivated land continuously for three years and due to that the said lands were entered as waste land vide entry No.211 as per the order No.VTN906, dated: 2/2/55 under the order of the collector dated: 28/07/53. As per the copy of village form No.7/12 for the year195657 produced by the applicants, the land of Survey No. 891 is described as government waste land in the column of occupier and the name of Mr. Balaji Hemaji was registered as the cultivator without permission in the PaniPatrak from the year 195657 to 195960. The name of Mr. Chhabaji Balaji was mentioned as the cultivator with permission from 196162 to 196364 and thereafter, in 196566 the name of Dabaji Bavaji was mentioned as cultivator with permission. Similarly, on survey No.896, Government waste land is mentioned in the column of occupier and in the PaniPatrak of 195657 to 195960, the name of Mr. Balaji Hemaji was registered as the cultivator without permission. Thereafter, from 196061 to 196667, the name of Chhabil Balaji and in 196768 the name of Chanduji Chhabaji have been mentioned in the PaniPatrak. Similarly, in Survey No.897, Government Waste Land is mentioned in the column of occupier and in the PaniPatrak of 195657, the name of Hemaji and from 195758 to 195960 the name of Balaji Memaji have been registered as the cultivator without permission. From 1960 61 to 196667, the name of Mr. Chhabaji Balaji and in 196768, the name of Chanduji Chhabaji have been mentioned in the Pani Patrak. Looking to the provisions of the Tenancy Act, on 01/04/59, the said lands were continued as Government Waste Page 16 of 50 C/SCA/14696/2016 CAV JUDGMENT Land and in the PaniPatrak from 195657 to 195960, the name of Balaji Hemaji was registered as the cultivator without permission. Therefore, on Tillers Day i.e. on 01/04/57 as the said lands were continued as the Government land and as the name of Balaji Hemaji was registered as the cultivator without permission in it, no tenancy right is created. Moreover, looking to the entry No.211, the said entry was registered in village form No.6 on 01/12/56 wherein, according to section7 of Personal Inam Abolition Act, the said entry was registered to enter the lands which remained waste and uncultivated continuously for three years before 01/08/55, as the Government Waste Land. Therefore, It gets clear that, before three years from 01/08/55, the said lands were not being cultivated by the land owner or any other person and they remained waste. Looking to the said entry No.211, before three years from 01/08/55 i.e. from 01/08/52 the said land has been lying waste and uncultivated. That means, the said lands have remained continuously waste and uncultivated from the year 195253, 195354 and 195455. That means, during these three years, the landlord or any other person did not cultivate the said lands. Thereafter, the said land was registered as Government Waste Land, and name of Balaji Hemaji has been registered in the panipatrak as cultivator without permission for the period from 195657 to 195960. The said Balaji Hemaji or any other person has not cultivated in 195253, 195354 and 195455, which becomes clear from the entry no. 211. Therefore, it automatically gets clear that Balaji Hemaji or Chhabaji Balaji or any other person was not tenant of aforesaid land on 01/04/57. The name of Balaji Hemaji has been registered as cultivator without permission in 195657 i.e. 01/08/56 to 31/07/57. At that time, land was continued as Government Waste Land, and as per continuance order and order of Hon'ble High Court, it is to be examined as to whether tenancy right of the applicants can be established in the aforesaid land, which is Government waste land, as present respondent no. 1 to 3 have considered the said land as their own land. Looking to the details of entry no. 211, as land owner or any other person has not cultivated the aforesaid land during 195253, 195354 and 1953 55 and the aforesaid land remained uncultivated, the said land was registered as Government Waste land. Therefore, it is clearly proved that no one had cultivated during these three years. Therefore, if aforesaid land was held to be in possession of private person and remained uncultivated during 195253, 195354 and 195355, tenancy right of applicants is not established therein. After 01/08/55 i.e. 195556 and thereafter, as aforesaid land was vested as Government Waste Land, and cultivation was made therein without permission and was held to be in the possession of private person, no tenancy right of applicants is established, and Page 17 of 50 C/SCA/14696/2016 CAV JUDGMENT therefore, as per the orders of the Courts, owner/occupant of the said land is not liable for cultivation without permission because tenancy right cannot be established if cultivation is done without the consent of land owner. In 195657 and thereafter, as cultivation has been done without permission or unilateral (eksali) consent, consent or responsibility of the persons, who have become owner/occupier of the land as per orders of the Courts, cannot be considered.

Further, on 07/10/2015, it has been submitted to the effect that they should be held as occupant considering them inferior holders as per section 5(b) of Inam Abolition Act, which is also not liable to be accepted as per the provisions of section 7 of the Personal Inam Abolition Act. Further, as per the submission of respondent no. 4 to 9, applicants instituted Regular Civil Suit No. 162/08, 163/08 and 164/08 in the Civil Courts to declare them owner of aforesaid land by adverse possession. Looking to the submissions, on one hand, applicants have claimed their right on the ground of adverse possession and on the other hand, they claim tenancy right. On third hand, they claim their right under Personal Inam Abolition Act. Thus, no substance appears in the submission of the applicants. Therefore, considering all the details, present revision application of applicants is liable to be rejected. The following order is passed.

:: O R D E R :: The Revision Application no. T.E.N./B.A./244/15 of the applicants is rejected. The order dated 04/06/2014 passed by Deputy Collector, L.R. Appeal, Ahmedabad in the appeal no. 64/2012 and order dated 25/11/77 passed by Mamlatdar and Krushi Panch, Daskroi in the Tenancy Case No. 19/77 are confirmed.

17. Mr. Mihir Thakore, the learned senior counsel appearing for the applicants vehemently submitted that the impugned order passed by the Tribunal is erroneous in law and deserves to be quashed and set aside. It is submitted that in the Regular Civil Suit No.483 of 1969, the predecessor of the petitioners in his writtenstatement took a specific stance that the land in question is being cultivated by him and he is the tenant of the said land.

It is submitted that the claim of the predecessor of the petitioners Page 18 of 50 C/SCA/14696/2016 CAV JUDGMENT was confirmed and admitted by the predecessors of the present respondent/landlord.

It is submitted that thereafter the trial court made a reference under Section85A of the Act, 1948 to decide the issue as to whether the ancestor of the petitioners was a "Tenant" of the land in question or not.

It is submitted that in the said proceedings, various statements were recorded on oath by the Mamlatdar and ALT of all the concerned parties including the landlord i.e. the private owner. It is submitted that the landlord categorically admitted the claim of the ancestor of the petitioners and thereby made a statement on oath that the land in question was purchased by them in the year 1946 by a registered sale deed and same was in occupation and physical possession of the tenant i.e. Chabaji Balaji and the said Chabaji Balaji i.e.the ancestor of the petitioners is cultivating the land in his capacity as a tenant.

It is submitted that the statement of the tenant Chabaji Balaji was also recorded wherein the claim of being tenant was reiterated. The Mamlatdar and ALT was pleased to record that the land in question is vested in the State Government and by virtue of the implementation of the Bombay Personal Inam Abolition Act 1952, the land in question is vested in the name of State Government and therefore, none could be a tenant of the land which belongs to the State Government.

It is submitted that the right/title over the land in question was no longer in the name of the Inamdar but the same were transferred in the name/capacity of private person/individual, and even then the land in question was erroneously as Inamdar land and vested it in the name of State Government by the order of Collector vide order no.Vatan/4035 dtd.28.07.1953.

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It is submitted that the Mamlatdar and ALT without considering the facts of the saledeed of 1946, erroneously decided on 25.11.1977 that the land in question being vested in the State Government, there can be no tenant of a Government land.

It is submitted that the petitioners could not file an appeal under the Tenancy Act because the civil suit was pending before the Civil Court and the question of ownership was yet to be decided by the Trial Court. No fruitful purpose would have been served even if the appeal would have been preferred as the reason for rejection of the claim was on the basis that the land was reflecting in the name of State Government and therefore, unless and until the suit is decided in favour of plaintiff Dahyabhai Parmar and till he is declared as "owner" of the land in question, the petitioners would not be in a position to claim their tenancy rights or seek a declaration against the State Government.

It is submitted that thereafter the civil suit was adjourned sine die and there was absolutely no progress in the said proceedings until 2009. In such circumstances, the petitioners were left with no other option but to file an appeal before the Deputy Collector challenging the order passed by the Mamlatdar dated 25/11/1977. It is submitted that without appreciating the entire factual background the appeal came to be dismissed only on the ground of gross delay and latches and the order passed in appeal came to be erroneously affirmed by the Tribunal.

Mr. Thakore submitted that the facts of this case are very peculiar. He submitted that his clients cannot run away from the fact that they thought fit to challenge the order of Mamlatdar passed way back in the year 1977 after a period of 36 years. However, according to Mr. Thakore, the circumstances were such that his clients were left with no Page 20 of 50 C/SCA/14696/2016 CAV JUDGMENT other option, but to file an appeal even after such a long delay. Mr. Thakore laid much emphasis on the fact that in the Tenancy Case No.19 of 1977, which arose from a reference made by the Civil Court under Section85A of the Act, the Mamlatdar thought fit not to decide the issue whether the petitioners were tenants of the land in question or not. The Mamlatdar took the view that as the land was running in the name of the Government, no person can claim tenancy on a Government land. According to Mr. Thakore, it was the duty of the Mamlatdar under Section70B of the Act to determine the issue whether the petitioners were tenants on the basis of the evidence as if the land was owned by Dahyabhai Pragjibhai Parmar. In fact, according to Mr. Thakore, the question was left wide open to be decided by the Civil Court. Mr. Thakore would submit that as the Mamlatdar proceeded on the premise that the land belongs to the Government, there was no objective purpose of challenging the said order till the Civil Court determined the interse rights of Dahyabhai Pragjibhai Parmar and the State Government.

Mr. Thakore submitted that his clients filed three suits against the State Government on the basis that they had been in possession and were cultivating the land since 195657. If the land belongs to the State, then they could be said to be in adverse possession past more than 30 years. Mr. Thakore would submit that the Civil Suit No.483 of 1969 came to be decreed in favour of Dahyabhai Pragjibhai Parmar. Dahyabhai Pragjibhai Parmar was declared as the owner of the land in view of the registered saledeed executed in 1946. It was held that the property does not belong to the State. Mr. Thakore submits that the issue no.4 was decided against his clients on the basis of the order of the Mamlatdar inspite of the fact that the Civil Court held that the property belongs to Dahyabhai Pragjibhai Parmar and not to the State Government. While on the other hand, the Mamlatdar's order proceeds Page 21 of 50 C/SCA/14696/2016 CAV JUDGMENT on the basis that the property is of the State Government and there cannot be any tenant in a property owned by the Government. Mr. Thakore would submit that once the Civil Court holds that the property is not of the State Government, the issue regarding tenancy ought to have been referred back to the Mamlatdar and could not have been decided on the basis of the order passed by the Mamlatdar, by which the Mamlatdar declined to go into the issue of tenancy.

Mr. Thakore submits that it is on 05/06/2010 that the respondents nos.8 to 12 purchased the land in question from the heirs of Dahyabhai Pragjibhai Parmar.

Mr. Thakore submitted that the Deputy Collector dismissed the Appeal No.64 of 2012 only on the ground of gross delay. Mr. Thakore would submit that the Deputy Collector ought to have gone into the merits of the matter in the peculiar facts of this case.

In such circumstances referred to above, the learned senior counsel prays that there being merit in this application, the same be allowed and the order of Tribunal be quashed.

18. On the otherhand, this application has been vehemently opposed by Mr. M.C. Bhatt, the learned senior counsel appearing for the respondents nos.8 to 12 as well as by the learned AGP appearing for the State respondent. Mr. Bhatt would submit that the appeal under Section 79 of the Bombay Tenancy and Agricultural Lands Act, 1948 was filed against the order dated 25/11/1977 passed by the Mamlatdar after a period of 36 years. According to Mr. Bhatt, the Act 1948, does not provide for any appeal against the judgment and order of the Mamlatdar or revenue tribunal under Section74 of the Act. The period of limitation Page 22 of 50 C/SCA/14696/2016 CAV JUDGMENT as provided under Section79 is 60 days. Section79 of the Act provides that Sections4, 5, 12 and 14 of the Indian Limitation Act would apply. According to Mr. Bhatt, the petition deserves to be rejected only on the ground of gross and undue delay.

19. Mr. Bhatt would submit that the only explanation offered by the petitioners as regards the delay is that the matter was subjudice before the Civil Court. Except this, no other sufficient cause has been assigned to even remotely explain the gross delay of almost more than 36 years. Mr. Bhatt pointed out that the Civil Suit No.483 of 1969 was finally decided by the judgment and decree on 30/04/2010. Even after passing of the judgment and decree dated 30/04/2010, the petitioners did not file any appeal for about two years and five months.

20. Mr. Bhatt submitted that the Mamlatdar while answering the reference under Section85A of the Act held that the predecessor of the petitioners was not a tenant of the subject land on 25/11/1977. This finding recorded by the Mamlatdar could be said to have been accepted by the petitioners either expressly or impliedly by their conduct. It is submitted that prior to the judgment and decree passed by the Civil Court, dated 30/04/2010 the petitioners and other heirs of the predecessorintitle had instituted Civil Suit No.162/2008; 163/2008 and 164/2008 respectively. It is pointed out by Mr. Bhatt that in the said three civil suits, the present respondents or their predecessorintitle were not joined as the defendants because the petitioners had accepted the finding of the Mamlatdar to the effect that the predecessorintitle was not a tenant as on 25/11/1977.

21. According to Mr. Bhatt, the entire suit was based on the plea that although the State was the owner of the subject land yet by adverse Page 23 of 50 C/SCA/14696/2016 CAV JUDGMENT possession the plaintiff had become the owners. They had prayed for declaration to the effect that they had become the owners of land in question by virtue of adverse possession against the true owners i.e. against the State. According to Mr. Bhatt, the petitioners are not entitled to seek any equitable relief from this Court nor they are entitled to contend that they are the landlords of the subject lands.

22. Mr. Bhatt submitted that the Deputy Collector has recorded a specific and clear finding that no case worth the name was made out to condone the delay. Such finding has been affirmed by the Gujarat Revenue Tribunal. In such circumstances referred to above, Mr. Bhatt, the learned counsel prays that there being no merit in this application, the same be rejected.

23. Mr. Bhatt seeks to rely upon the following averment made in the affidavit in reply filed on behalf of the respondents nos.8 to 12.

6. It is humbly submitted that the present petitioners have preferred three civil suits bearing No.162/2008, 163/2008, 164/2008 and claim that they have become owners by adverse possession and ultimately prayed for a decree of declaration that they have become owners of the questioned land on the basis of their their claim of adverse possession. The petitioners herein also claimed for interim relief in the suit by preferring application Ex.5 but that application was rejected. In this circumstances, it is abundantly clear that the petitioners did accept the order of the Ld. Mamlatdar (annexureJ) holding that grandfather of the petitioners was not tenant. It appears that having failed to obtain interim relief in civil suit claiming adverse possession, the petitioners have chosen to file appeal before the Ld. Deputy Collector in the year of 2012. Thus, it is crystal clear that before the final judgment between the parties delivered by Ld. Civil Court in Civil Suit No.483/69 on 30/4/2010, the petitioners have accepted the decision rendered by Ld. Mamlatdar and since 2008 the Petitioners are claiming title over the questioned land on the basis of adverse possession, they have accepted the decision of Ld. Mamlatdar that original Chhabaji was not the tenant of the suit land. Thus, malafidely after 32 years, the order passed by the Ld. Mamlatdar Page 24 of 50 C/SCA/14696/2016 CAV JUDGMENT was sought to be challenged before the Deputy Collector and again tried to claim tenancy of the suit. It is humbly submitted that plea of tenancy and plea of adverse possession are otherwise also self destructing. A person claiming title on the basis of adverse possession does not recognize any person as an owner and he claims to hold adverse to any owner and a person claiming tenancy always claims that he has been inducted voluntarily by the landlord and he liable to pay consideration of by way of rent to the landlord. Thus, in the circumstances of the present case, the petitioners have waived any claim as a tenant if at all, there was any such claim on questioned land since they are claiming ownership of the questioned land on the basis of adverse possession.

7. The petitioners have tried to mislead the Hon'ble Court that the petitioners did wait till the judgment dated 30/4/2010 delivered by the Ld. Trial Court, forth making claim as a tenant. In fact, as stated hereinabove, since 2008, they are claiming that they are owners of the questioned land by adverse possession, so there was no question of waiting to make claim of tenancy after 2008.

8. The petitioners have also further tried to mislead this Hon'ble Court because the judgment of the Ld. Civil Court in Civil Suit No.483/69 was delivered on 30/04/2010, while appeal before the Dy. Collector is preferred in 2012.

9. It is further submitted that Section 85 of the Tenancy and Agriculture Lands Act ousts the jurisdiction of civil court in respect of all the issues required to be determined by Mamlatdar, the Tribunal, the Collector or Gujarat Revenue Tribunal or State of Gujarat under B.T. & A.L. Act, legislature amended B.T. & A.L. Act by Section 85(A) by Act No13 of 1956. Section 85(A) made provision regarding any eventuality occurring before any civil court regarding disputes, it can only be resolved by authorities described in Section85 then in that case the Civil Court as to make reference to the concerned Tenancy Authority and on receipt of fining from the Tenancy Authority on the issue, the Civil Court has to proceed further on the basis of finding recorded by Tenancy Authority. The dispute of tenancy is covered by Section 70(B) of B.T. & A.L. Act and therefore, it is required to be determined by Mamlatdar. In this view of the matter, Ld. Civil Judge made a reference to the Mamlatdar to determine the issue regarding the claim of tenancy of grandfather of the petitioners. Undisputedly, Ld. Mamlatdar recorded the finding that grandfather of the petitioners was not tenant and reference was send back to Ld. Civil Court accordingly. This decision of Mamlatdar could have been only challenge U/s.74 of B.T. & A.L. Act before the Collector and the decision of Collector is further subject to the revisional jurisdiction of Gujarat Revenue Tribunal U/s.76 of B.T & Page 25 of 50 C/SCA/14696/2016 CAV JUDGMENT A.L. Act. Therefore, if petitioners' grandfather was aggrieved by the judgment and order of the Ld. Mamlatdar dated 25/11/77, he has only one remedy to prefer appeal before the Collector U/s.74 of B.T. & A.L. Act within the period of limitation of two months. Thus, petiitoners' grandfather was entitled to prefer appeal on or before 25/1/78. The grandchildren of the original alleged tenant has preferred appeal in the year 2012, thus, appeal is preferred after about 32 years and there is not only sufficient reason but there is absolutely no reason for condonation of delay and therefore, the delay could not have been condoned by the Ld. Deputy Collector and on merit also, petitioners have no case to claim tenancy.

10. It is humbly submitted that the Ld. GRT has considered all the aspects including the merit of the case, law of equity and limitation and ultimately by the judgment (annexureR) dated 9/10/2015, revision application preferred by the petitioners is rejected. The judgment of the Ld. Tribunal is legal, just and fair. No ground is made out for interference in exercise of the extra ordinary writ jurisdiction under Article 227 of the Constitution of India.

11. It is further submitted that Ld. Tribunal has considered the aspect of delay and merits both. The Ld. Tribunal has justly and properly considered the aspect of claim of adverse possession put forward by the present petitioners in civil suits. The alleged demand made by the petitioners from the Government to cultivate land on early basis. The Ld. Tribunal also relied on entries regarding alleged cultivation without permission.

12. It is further submitted that the petitioners have intentionally suppressed the fact regarding institution of three suits claiming ownership of the questioned land on the basis of adverse possession from this Hon'ble Court. In this view of the matter also, petitioners are not entitled to any equitable relief in exercise of writ jurisdiction.

13. The respondents also relied upon the written arguments submitted by the present respondents before the Ld. GRT at AnnexureR/3.

14. I further say and submit that after the judgment and decree of the Trial Court in 2010, the present deponent purchased the property and applied for the NA permission. It is pertinent to note that the present petitioner filed the appeal before the Ld. Deputy Collector in 2012 and till date, not challenge the sale deed of the present deponent before any competent civil court. In this view of the matter, the present respondent nos.8 to 12 are the bonafide purchaser and purchased the property after paying the consideration in tune of Rs.15600000.

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24. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the tribunal committed any error in passing the impugned order.

25. Any finding recorded by the Mamlatdar in a reference made by the Civil Court under Section85A of the Act, 1948 is required to be challenged by preferring an appeal under Section74 of the Act and thereafter, a revision application under Section76 of the Act. Since the entire argument of the learned senior counsel appearing for the petitioners revolves around the pendency of the suit, I may only say that the party to the suit is not at all justified in law to wait for challenging the findings recorded by the Mamlatdar under Section85A of the Act till the judgment is delivered by the concerned Civil Court.

26. In the aforesaid context, I may refer to and rely upon a Division Bench decision of this Court in the case of 'Baroda Municipal Corporation Vs. Soma Bhajiji' reported in 1967 GLR 907. In the said case before the Division Bench, a common point as regards the interpretation and application of Section85A of the Act, 1948 arose for consideration. The petitioners therein in each of the Civil Revision Application had filed a suit against the respondent of each revision application, in which, a question had arose as to whether the defendant was a tenant or not. The issue as to whether the defendant was a tenant in the suitland was referred by the Civil Court to the Mamlatdar for his decision under Section85A of the Act, 1948 and the suits were stayed till the decision of the competent authority under that Act. The Mamlatdar decided the issue and communicated his decision to the Civil Court. The plaintiff in each suit applied to the Civil Court for stay of the Page 27 of 50 C/SCA/14696/2016 CAV JUDGMENT suit on the ground that he wanted to prefer an appeal against the decision of the Mamlatdar and that therefore, the suit be stayed till the appellate Court would decide the appeal. The Civil Judge declined to stay the suit on the ground that it was not necessary to wait for the decision of the appellate Court as the Mamlatdar had communicated his decision to the Civil Court. In the said case, the plaintiff had preferred appeal against the decision of the Mamlatdar in all the cases, which were referred to him by the Civil Court.

It was argued on behalf of th respondents that the decision of the competent authority referred to in section85A of the Act could only mean the decision of the Mamlatdar and not the decision of any of the authorities who had the authority to hear the appeals against such decisions of the Mamlatdar and therefore, the Civil Court had no power to stay the suit until the appeal preferred against the decision of the Mamlatdar was decided. The Division Bench while holding that the Civil Court was bound to stay the suits till the appeals preferred by the petitioners against the decision of the Mamlatdar were decided, held as under: It will be observed that Section 85A refers to the authority competent to settle, decide or deal with issues under the Act and as provided in Section 85, the jurisdiction of the Civil Court that is barred is as regards questions which are required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Gujarat Revenue Tribunal in appeal or revision or the State Government. It is thus obvious that the competent authority referred to in Section 85A must be any one of the authorities referred to in Subsection (1) of Section 85 and as a necessary consequence, it would follow that when a reference is made by a Civil Court under Subsection (1) of Section 85, the competent authority would be required to deal with and decide such issues which are referred to it in accordance with the provisions of the Act and after such a decision is directed to communicate its decision to the Civil Court and it is upon receipt of such a decision that the Civil Court should dispose of the suit in accordance with the Page 28 of 50 C/SCA/14696/2016 CAV JUDGMENT procedure applicable thereto. Since a competent authority would include all the authorities mentioned in Subsection (1) of Section 85, the Civil Court was bound to stay a suit in which such issues are raised till the decision of anyone of the authorities mentioned in Subsection (1) of Sections 85. Sections 85 and 85A of the Bombay Tenancy and Agricultural Lands Act relate to the same subject matter and must therefore, be read together and reading these two sections together, the word "competent authority" given in Section 85A must, without doubt, mean and include each one of the authorities in the hierarchy of authorities mentioned in Section 85 of the Act and the Civil Court was bound to stay the suit till the decision of anyone of those authorities was received. We are, therefore, not in agreement with the decision of Raju J. in Civil Revision Application No. 164 of 1963 (noted at I G. L. T. 23). The decision of the learned Judge in that Civil Revision Application is as under:

Under Section 8SA of the Bombay Tenancy and Agricultural Lands Act, 1948, a suit has to be stayed till the decision of a competent authority and when once the decision is communicated to the Civil Court, the Civil Court is bound to dispose of the suit. It should not wait for decision of the appellate authority over the decision of the competent authority. The view taken by the lower Court is correct. The revision application is, therefore, dismissed with costs.

3. Sections 85 and 85A of the Bombay Tenancy and Agricultural Lands Act refer to question which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under the Act. Under Subclause (b) of Section 70 it is the duty and function of the Mamlatdar to decide whether a person is a tenant or not. When such a question arises in a Civil Suit, by virtue of Section 85 the Civil Court will have no jurisdiction to settle, decide or deal with such an issue as it is required to be decided by the Mamlatdar under Section 70 of the Act. By virtue of Section 85A of the Act, it would be necessary for the Civil Court to refer such a question for decision to the Mamlatdar and until that decision is arrived at, the Civil Court, is enjoined to stay the suit.

When a decision on such a reference by the Civil Court is arrived at by the Mamlatdar, that decision of the Mamlatdar would be subject to an appeal under Subsection (1)(v) of Section 74 and obviously, the final decision on the question would be that of the appellate authority. The appellate authority thus would be the authority who would be competent to settle, decide or deal with the question which is required to be decided by such authority under the Act, and therefore also the appellate authority would be the competent authority within the meaning of Section 85A and the reference to the decision of the competent authority in Section 85A must be to Page 29 of 50 C/SCA/14696/2016 CAV JUDGMENT the decision of the appellate authority who, as stated above, according to the Act, would be the competent authority to settle, decide or deal with the issue that has arisen before the Civil Court. If that were not so, a strange and anomalous situation would arise. If on a reference by the Civil Court, the Mamlatdar decided the issue in favour of one party and a decree of the Civil Court was passed in favour of that party without waiting for the decision of the appellate authority and subsequently if the decision of the Mamlatdar was reversed by the appellate authority, there would be two conflicting decisionsone of the Civil Court and the other of the authority. which decided the appeal against the decision of the Mamlatdar. Such a result could never have been intended by the Legislature and if we read Sections 85 and 85A together, the decision of the competent authority referred to in Section 85A is and must be the final decision arrived at by the competent authority referred to in Subsection (1) of Section 85, that is, anyone of the authorities in the hierarchy referred to in that subsection.

4. For the reasons stated above, we are of the view that Civil Revision Application No. 164 of 1963 decided by Raju J. on 28th August 1964 was wrongly decided and we hold that the Civil Court was bound to stay the suit till the appeals preferred by the petitioners against the decisions of the Mamlatdar were decided. The revision applications are, therefore, allowed and the order passed by the learned Civil Judge in each of the suits is set aside and we order that each of the civil suit should be stayed till the question that was arisen under the Act is finally decided by the competent authority under the Act.

27. In view of the dicta as laid in the above referred Division Bench decision of this Court, the contention of the learned senior counsel as regards waiting for the judgment of the Civil Court and thereafter, preferring an appeal against the decision of the Mamlatdar should fail. In fact, such argument has been canvassed only for the purpose of getting out of the gross and undue delay.

28. I take notice of the fact that the Civil Court will dealing with the issue No.4 accepted the finding of the Mamlatdar that the petitioners herein are not the tenants of the subject land. In fact, no appeal was filed by the petitioners for a period of 4 ½ years after passing of the Page 30 of 50 C/SCA/14696/2016 CAV JUDGMENT decree by the trial Court. The petitioners were joined as the legal representatives of the original defendant by order below Exh.86. It appears from the materials on record that the petitioners were served with the summons issued by the Civil Court. The order below Exh.86 was passed by the Civil Court on 29/07/2009, but before that, in the year 2008, the petitioners had already filed a civil suit claiming ownership of the land by adverse possession. Primafacie, it appears that on account of the stance taken by the petitioners in the separate civil suit, they did not deem fit to pursue the Civil Suit No.483 of 1969. This would indicate that the petitioners had accepted the finding of the Mamlatdar that they are not the tenants of the subject land.

29. In my view having regard to the stance of the petitioners regarding their ownership by way of adverse possession, they are now not entitled to raise the contention regarding the tenancy. The issue as regards the tenancy could be said to have stood concluded for all times to come. If the Deputy Collector thought fit not to entertain the appeal filed by the petitioners on the ground that the same was filed after a period of 36 years and such order was being affirmed by the revenue tribunal, then it would be toomuch to interfere in exercise of its supervisory jurisdiction under Article227 of the Constitution of India.

30. Let me look into the case law relied upon by Mr. Bhatt, the learned counsel appearing for the respondents nos.8 to 12.

31. In the case of Pundlik Jalam Patil (D) By Lrs. Vs. Executive Engineer, Jalgaon Medium Project And Another reported in (2008) 17 SCC 448, the Supreme Court considered whether the averments disclosed any sufficient cause to condone the inordinate delay of 1724 days in filing the appeals. While allowing the appeals and setting aside Page 31 of 50 C/SCA/14696/2016 CAV JUDGMENT the order passed by the High Court condoning the delay of 1724 days, the Supreme Court held as under: 19 In Ajit Singh Thakur Singh and anr. V/s. State of Gujarat, 1981 1 SCC 495 this court observed (SCC p.497, para 6):

"It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute sufficient cause." (Emphasis supplied) This judgment squarely applies to the facts in hand.

20 The respondent beneficiary of the acquisition did not initiate any steps whatsoever before expiry of limitation and no circumstances are placed before the court that steps were taken to file appeals but it was not possible to file the appeals within time.

21 Shri Mohta, learned senior counsel relying on the decision of this court in N. Balakrishnan V/s. M. Krishnamurthy, (1998) 7 SCC 123 submitted that length of delay is no matter, acceptability of explanation is the only criterion. It was submitted that if the explanation offered does not smack of mala fides or it is not put forth as part of dilatory tactics the court must show utmost consideration to the suitor. The very said decision upon which reliance has been placed holds that the law of limitation fixes a life span for every legal remedy for the redress of the legal injury suffered. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of Limitation is thus founded on public policy. The decision does not lay down that a lethargic litigant can leisurely choose his own time in preferring appeal or application as the case may be. On the other hand, in the said judgment it is said that court should not forget the opposite party altogether. It is observed: (SCC p.128, para 11) "11.......It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."

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22 In Ramlal and others V/s. Rewa Coalfields Ltd., AIR 1962 SC 361, this court held that (AIR pp.36365:

"In construing Sec. 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for making an appeal gives rise to right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause of excusing delay is shown discretion is given to the court to condone the delay and admit the appeal. 'It is further necessary to emphasis that even if the sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by sec. 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage the diligence of the party of its bona fides may fall for consideration."

(emphasis supplied) 23 On the facts and in the circumstances, we are of the opinion that the respondent beneficiary was not diligent in availing the remedy of appeal. The averments made in the application seeking condonation of delay in filing appeals do not show any acceptable cause much less sufficient cause to exercise courts' discretion in its favour.

24 Learned senior counsel for the respondent also placed reliance upon the decision of this court in Union of India V/s. Sube Ram and others, 1997 9 SCC 69. This court condoned delay of 3379 days in preferring the appeals by Special Leave. The said decision is mostly confined to the facts of that case and does not lay down any law as such requiring us to make any further analysis of the judgment.

25 Submissions based on public interest and involvement of public money: The learned counsel for the respondent relied upon the decision of this court in Union of India V/s. Balbir Singh and ors., 2000 10 SCC 611 in support of his submission that the courts should be liberal in condoning the delay particularly whenever public interest and public money is involved. All that the said decision states is that in the circumstances of the case the court was inclined to condone the delay, particularly, "because it is in the public interest as public money is involved." The facts are not evident from the judgment and as to what were those public interest Page 33 of 50 C/SCA/14696/2016 CAV JUDGMENT parameters that were taken into consideration to condone the delay in filing appeals.

26 Basically the laws of Limitation are founded on public policy. In Halsbury's Laws of England,4th Ed., Vol.28,p.266,para 605, the policy of the Limitation Acts is laid down as follows:

"605. Policy of the Limitation Acts. The courts have expressed at least three different reasons supporting the existence of statutes of limitation, namely,(i) that long dormant claims have more of cruelty than justice in them, (ii) that a defendant might have lost the evidence to dispute the stated claim, (iii) that persons with good causes of actions should pursue them with reasonable diligence."

27 Statutes of limitation are sometimes described as 'statutes of peace'. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This court in Rajender Singh and others V/s. Santa Singh and others, 1973 2 SCC 705 has observed : (SCC p.712, para

18) "18. The object of law of Limitation is to prevent disturbance and deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches".

28 In Tilokchand Motichand V/s. H.B. Munshi, 1969 2 SCR 824, this court observed that this principle is based on the maxim "interest republicae ut sit finis litum", that is, the interest of the State requires that there should be end to litigation but at the same time law of Limitation are a means to ensuring private justice suppressing fraud and perjury, quickening diligence and preventing oppression.

29 It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

30 Public interest undoubtedly is a paramount consideration in exercising the courts discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land loosers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of Page 34 of 50 C/SCA/14696/2016 CAV JUDGMENT acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit which otherwise not entitled in law in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land loosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed u/s. 5 of the Limitation Act. Dragging the land loosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.

31 It is true when the State and its instrumentalities are the applicants seeking condonation of delay they may be entitled to certain amount of latitude but the law of limitation is same for citizen and for Governmental authorities. Limitation Act does not provide for a different period to the government in filing appeals or applications as such. It would be a different matter where the Government makes out a case where public interest was shown to have suffered owing to acts of fraud or collusion on the part of its officers or agents and where the officers were clearly at cross purposes with it. In a given case if any such facts are pleaded or proved they cannot be excluded from consideration and those factors may go into the judicial verdict. In the present case, no such facts are pleaded and proved though a feeble attempt by the learned counsel for the respondent was made to suggest collusion and fraud but without any basis. We cannot entertain the submission made across the Bar without there being any proper foundation in the pleadings.

32. In the case of Haryana State Handloom And Handicrafts Corporation Limited And Another Vs. Jain School Society reported in (2003) 12 SCC 538, the Supreme Court declined to look into the plea of enhancement of compensation after a period of 22 years. While allowing the appeal of the corporation and setting aside the order of the High Court, the Supreme Court observed as under: 6 It was next submitted that the Respondents did not file the Writ Petition because some other party had challenged the acquisition and got a stay order from a Court of law. It was submitted that the Page 35 of 50 C/SCA/14696/2016 CAV JUDGMENT Writ Petition was filed only after the litigation was disposed of. We see no substance in this submission also. The litigation had nothing to do with the Respondents' or the acquisition of the Respondents' land. In the Writ Petition, filed by the Respondents, there is not even a word about those proceedings. The fact of those proceedings only came on record in the reply filed by the State. The State sought to justify, non use of the land for the purpose for which it was acquired, on ground of that litigation. Merely because this fact was mentioned by the State it did be afford Respondents an excuse to justify delay and latches on their part.

7 It was next submitted that even though there were delay and latches on the part of the Respondents they were justified in filing the Writ Petition as the fraud was being played by the State and the acquiring body. It was submitted that the land was sought to be transferred to some other body even though the acquisition was on behalf of Appellants. It was submitted that the Respondents filed the Writ Petition as this fraud came to their knowledge. We see no substance in this contention also. In the Writ Petition there is no ground of fraud. These are also facts which came to light as a result of the reply filed by the State in the Writ Petition. It was the State who mentioned that the Appellants did not have the money to develop the land and that therefore the land was proposed to be transferred to some other party. This would afford no ground for entertaining a Writ Petition which was filed 22 years after the Section 4 Notification had been issued.

8 Recently, in the case of Northern Indian Glass Industries vs. Jaswant Singh reported in (2003) 2 SCC 335, this Court considered the question whether a Writ Petition filed after 17 years of issue of a notification under Section 4 could be entertained. This Court has held that such a Writ Petition must not be entertained. It is held that the Writ Petition must be dismissed on the grounds of delay and latches itself. It is held that mere non payment of enhanced compensation or the fact that the land had not been put to use for the purpose of which it was acquired would be no ground for justifying delay and latches. We are in full agreement with the view expressed therein.

9 In this case, there is absolutely no explanation for the delay and latches of over 22 years, particularly when the Respondents had applied for enhancement of compensation.

33. In the case of State of Punjab Vs. Gurdev Singh reported in (1991) 4 SCC 1, the issue before the Supreme Court was one concerning the limitation governing the suit for a declaration filed by a dismissed Page 36 of 50 C/SCA/14696/2016 CAV JUDGMENT employee on the ground that he continued to be in service since his dismissal was void and inoperative. While allowing the appeals filed by the State of Punjab, the Supreme Court has observed as under: 7 In the instant cases, the respondents were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them the order of dismissal was illegal, inoperative and not binding on the. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs.

8 But none the less the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith V/s. East Elloe Rural District Council, (1956) AC 736 at p. 769 Lord Redcliffe observed: (all ER p.871) "An order even if not made in good faith is still an act capable of legal consequences it bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."

9 Apropos to this principle, Prof. Wade states: the principle must be equally true even where the 'brand of invalidity' is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the Court Prof. Wade sums up these principles:

"The truth of the matter is that the Court ,will invalidate an order only If the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's Page 37 of 50 C/SCA/14696/2016 CAV JUDGMENT lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another." (Ibid p. 352) 10 It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for.

11 Counsel for the respondents, however, has placed strong reliance on the decision of this Court in State of M. P. V/s. Syed Quamarali, 1967 Serv LR 228 (SC). The High Court has also relied upon that decision to hold that the suit is not governed by the limitation. We may examine the case in detail. The respondent in that case was a subinspector in the Central Province Police Force. He was dismissed from service on 22.12.1945. His appeal against that order was dismissed by the Provincial Government, Central Provinces and Berar on 9.04.1947. He brought the suit on 8.12.1952 on allegation that the order of dismissal was contrary to the para 241 of the Central Provinces and Berar Police Regulations and as such contrary to law and void, and prayed for recovery of Rs. 4724/5.00 on account of his pay and dearness allowance as subinspector of Police for the three years Immediately preceding the date of the institution of the suit. The suit was decreed and in the appeal before the Supreme Court, it was urged that even if the order of dismissal was contrary to the provisions of, law, the dismissal remained valid until and unless it is set aside and no relief in respect of salary could be granted when the time for obtaining an order setting aside the order of dismissal had elapsed. It was observed: (SLR p.234, para 20) "We therefore hold that the order of dismissal having been made in breach of a mandatory provision of the rules subject to which only the power of punishment under Section 7 could be exercised is totally invalid. The order of dismissal had, therefore, no legal existence and it was not necessary for the respondent to have the order set aside by a Court. The defence of limitation which was based only on the contention that the order had to be set aside by a Court before it became invalid must therefore be rejected."

12 These observations are of little assistance to the plaintiffs in the present case. This Court only emphasized that since the order of dismissal was invalid being contrary to para 241 of the Berar Police Page 38 of 50 C/SCA/14696/2016 CAV JUDGMENT Regulations, it need not be set aside. But it may be noted that Syed Qamarall brought the suit within the period of limitation. He was dismissed on 22.12.1945. His appeal against the order of dismissal was rejected by the Provincial Government on 9.04.1947. He brought the suit which has given rise to the appeal before the Supreme Court on 8.12.1952. The right to sue accrued to Syed Qamarali when the Provincial Government rejected his appeal affirming the original order of dismissal and the suit was brought within six years from that date as prescribed under Art. 120 of the Limitation Act, 1908.

13 The Allahabad High Court in Jagdish Prasad Mathur V/s. United Provinces Government, AIR 1956 All 114, has taken the view that a suit for declaration by a dismissed employee on the ground that his dismissal is void is governed by Art. 120 of the Limitation Act. A similar view has been taken by Oudh Chief Court in Abdul Vakil V/s. Secretary of State, AIR 1943 Oudh 368. That in our opinion is the correct view to be taken. A suit for declaration that an order of dismissal or termination from service passed against the plaintiff is wrongful, illegal or ultra vires is governed by Art. 113 of the Limitation Act. The decision to the contrary taken by the Punjab & Haryana High Court in these and other cases (State of Punjab V/s. Ajit Singh, (11988) 1 Serv LR 96 (Punj & Har) and (ii) State of Punjab V/s. Ram Singh, (1986). 1 Serv LR 379 (Punj &.Har) is not correct and stands overruled.

34. In the case of P. Mani Moopanar Versus K.Rajammal reported in (2005) 11 SCC 800, the Supreme Court observed as under: 4 The High Court was required to go into the question of sufficiency of cause shown to condone the inordinate delay of 2598 days which it did not do and, instead, proceeded to allow the revision petitions on taking an overall view of the matter on merits.

5 In our view, the High Court has erred in reversing the order of the trial court refusing to condone the delay. It was open to the High Court to accept the explanation given by the respondents for condoning the delay but, without setting aside the findings of the trial court on the sufficiency of cause shown, it was not permissible to the High Court to enter into the merits of the dispute and condone the delay.

35. In the case of Municipal Council, Ahmednagar And Another Vs. Shah Hyder Beig And Others reported in (2000) 2 SCC 48, the Page 39 of 50 C/SCA/14696/2016 CAV JUDGMENT Supreme Court observed as under: 14 The High Court has thus misplaced the factual details and misread the same. It is now a well settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period, the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law Courts under Art. 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, 'delay defects equity' has its fullest application in the matter of grant of relief under Art. 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a gobye to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise. The High Court as a matter of fact lost sight of the fact that since the year 1952, the land was specifically reserved for public purposes of school playground and roads in the development plan and by reason therefor, the notification to acquire the land has, therefore, been issued under the provisions of the Act as stated above.

18 Similar is the view in an earlier decision of this Court in the case of Municipal Corporation of Greater Bombay V/s. Industrial Development Investment Co. Pvt. Ltd., reported in (1996) 11 SCC 501 : (1996 AIR(SCW) 3871 : AIR 1997 SC 482). Incidentally, the decision last noted was also on the land acquisition and requisition under the Maharashtra Regional and Town Planning Act, 1966 and in paragraph 29 of the report, this Court observed : (SCC p.520) "29. It is well settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Art. 226 of the Constitution to quash the notification u/s. 4(1) and declaration u/s. 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Art.

226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by Page 40 of 50 C/SCA/14696/2016 CAV JUDGMENT the learned single Judge dismissing the writ petition on the ground of laches."

19 Mr. Venugopal, learned senior counsel appearing for one of the respondents, placed strong reliance upon a recent decision of this Court in the case of Hindustan Petroleum Corporation Ltd. V/s. Dolly Das, reported in (1999) 4 SCC 450. This Court in paragraph 8 of the report observed as below : (SCC p.455) "8. So far as the contention regarding laches of the respondent in filing the writ petition is concerned, delay, by itself, may not defeat the claim for relief unless the position of the appellant had been so altered which cannot be retracted on account of lapse of time or inaction of the other party. This aspect being dependent upon the examination of the facts of the case and such a contention not having been raised before the High Court, it would not be appropriate to allow the appellants to raise such a contention for the first time before us. (Emphasis supplied). Besides, we may notice that the period for which the option of renewal has been exercised has not come to an end. During the subsistence of such a period certainly the respondent could make a complaint that such exercise of option was not available to the appellants and, therefore, the jurisdiction of the High Court could be invoked even at a later stage. Further, the appellants are not put to undue hardship in any manner by reason of this delay in approaching the High Court for a relief."

(emphasis supplied)

36. A learned Single Judge of this Court in the case of Chimanlal Lallubhai Shah Vs. Dahyabhai Ranchhodbhai and Others reported in 1995 (1) GLH 1141, took the view that it is open for a party to take inconsistent plea in the alternative, provided such inconsistent stand is maintainable in the eye of law. The Court took the view that the claim as a tenant and the claim by way of adverse possession are mutually destructive inasmuch as the possession as a tenant is always permissive, whereas, adverse possession is never permissive. I may quote the relevant observations:

3. On behalf of the respondents, a preliminary objection has been raised that in view of the provisions contained in Order XVIII Rule Page 41 of 50 C/SCA/14696/2016 CAV JUDGMENT 1(u) read with Section 20"of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 this Appeal from Order is not maintainable and the petitioner should have preferred a Revision. This appeal is pending since 1987 and in the impugned judgment, the direction given is to remand the matter. Before I deal with this objection, in the facts of this case, I consider it appropriate to deal with the order of remand. It is not in dispute that the plea of adverse possession was waived by the plaintiffs and after waving the same, the Suit proceeded, the evidence was over and although the document dated 8162 had been produced on 16482 the application seeking amendment to revert back to the plea of adverse possession was moved on 391982 and against the order dated 89 1982 by which the application seeking amendment was rejected, no Revision Petition was filed by the plaintiffs. It is also pertinent to mention that the plaintiffs in the Suit have taken alternative but inconsistent plea with regard to the claim as a tenant and the claim by way of adverse possession. There is no doubt that it is open to a party to take inconsistent plea in alternative, provided such inconsistent stand is maintainable in the eye of law. But one thing, which is clear on the face of the matter is that here the inconsistent plea with regard to the claim as a tenant and the claim by way of adverse possession are mutually destructive inasmuch as the possession as a tenant is always permissive whereas adverse possession is never permissive. Therefore, even if it is held that inconsistent plea can be taken, such plea if mutually destructive, cannot be allowed. Mr. Sajanwala appearing on behalf of the petitioner has cited before me AIR 1968 Supreme Court 1355 (Prem Raj v. D. L. F. H. and C. Ltd.) wherein the Supreme Court while dealing with liltprovisions contained in Section 37 of the Specific Relief Act has observed as under:

"It is expressly provided by this section that a plaintiff suing for specific performance of the contract can alternatively sue for the rescission of the contract but the converse is not provided. It is therefore not open to a plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance. Section 85 of the specific Relief Act, 1877 states the principles upon which the rescission of a contract may be adjudged. But there is no provision in this section or other section of the Act that a plaintiff suing for rescission of the agreement may sue in the alternative for specific performance."

According to the Supreme Court, intention of. the Act is that no such alternative prayer is open to the plaintiff. In the instant case, when the plea of permissive possession was taken and in juxtaposition to this plea, the plea of adverse possession was also taken, in my opinion it is not simply a case of taking inconsistent plea but the Page 42 of 50 C/SCA/14696/2016 CAV JUDGMENT plea is irreconcilable rather it is mutually destructive and, therefore, in my opinion it is not open for the plaintiffs to take such plea on the ground of taking alternative plea. Besides this here is a case in which the plea of adverse possession had been abandoned and waived unilaterally by the plaintiffs. The learned Counsel for the respondent herein has argued that the document dated 811962, which was produced on 1641982, uses the words that the plaintiffs' father was an encroacher himself and that this document had been produced by the defendant himself and on that basis the plaintiffs wanted to revert back to the plea of adverse possession, 1 fail to understand how this document can be a basis so as to amend the plaint and revert back to the plea of adverse possession. The learned Counsel for the respondents herein read over the contents of this document more than once, but failed to satisfy the Court as to how this document could be made use of so as to revert back to the plea of adverse possession. The learned Counsel for the respondents has orally submitted that the predecessor in title of the defendant is the author of this document and that in this document it has been mentioned that some construction had been raised by the plaintiffs' father without the permission of the Municipality. Such an act of raising construction without the permission of the Municipality can be done by a tenant also and, therefore, this document hardly throws any light on the question of adverse possession so as to entitle the plaintiffs to revert back to the plea of. adverse possession by way of amendment. The plea of adverse possession has been specifically waived by the plaintiffs by moving appropriate application Exh. 61 and when the application seeking amendment to this effect was rejected, no revision against such order was preferred. In this view of the matter, I am of the considered opinion that the Assistant Judge. Surat has acted with material irregularity in the exercise of its jurisdiction while remanding the matter back to the trial Court so as to frame the issue on the question of adverse possession and on account of this error of jurisdiction, while exercising the same, the order of remand cannot be sustained in the eye of law and the Appeal, which had been preferred by the plaintiffs, ought to have been decided on merits with reference to the plaintiffs claim as a tenant."

37. In the case of Bharmappa Nemanna Kawale And Another Vs. Dhondi Bhima Patel and Others reported in AIR 1997 SC 122, the Supreme Court observed as under:

4. The admitted position is that the Civil Court decreed the suit for eviction against the appellant holding that he was not a tenant which order had become final. The same plea of want of jural Page 43 of 50 C/SCA/14696/2016 CAV JUDGMENT relationship is sought to be raised in execution. When the objection raised was negatived, the High Court in Writ Petition No.3319 of 1992 by order dated November 22, 1991 directed the executing Court to go in to the question. Accordingly, this appeal by special leave came to be filed.

5. Shri Bhasme, learned counsel for the respondents, contended that in view of the specific language employed in Section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948 the only competent authority that has to go into the question is the revenue authority under the Act and Civil Court has no jurisdiction to go into the question whether the appellant is a tenant or not. Therefore, the High Court was right in directing the executing Court to go into the question. It is rather unfortunate that the respondent has allowed the decree holding that he is not a tenant to become final. Having allowed it to become final, it is not open to him to contend that he is still a tenant under the Act and therefore the decree is nullity. Under those circumstances, the executing Court was right in refusing to entertain the objection for executing the decree. The High Court was not justified, in the circumstances, in directing the executive Court to consider the objection.

Scope of supervisory jurisdiction under Article227 of the Constitution:

38. I may begin with noticing that the power of superintending control conferred by Article 227 of the Constitution is similar to the control exercised by the Court of Kings Bench over the inferior Courts of England under the Common Law. The history of Article 227 and its scope were considered by the Apex Court in Waryam Singh v. Amarnath, (1954) SCR 565, and it was indicated that the material part of Article 227 substantially reproduces the provisions of Section 107 of Government of India Act 1915, except that the power of superintendence has been extended by the Article also to Tribunals.

39. The history of Article 227 suggests that the framers of our Constitution believed that they were restoring to the High Court the power which had been taken away by Section 224 of Government of Page 44 of 50 C/SCA/14696/2016 CAV JUDGMENT India Act, 1935. In the original Constitution of India Article 227 was devised to empower the High Court to exercise its supervisory jurisdiction not only over the inferior courts within its territory but also over the statutory or quasi judicial Tribunals to ensure that all these inferior bodies exercise the powers conferred on them 'within the bounds of their authority' and 'in a legal manner'. But the supervisory jurisdiction of the High Court over all the administrative Tribunals was abolished by the 42nd Amendment Act, 1976 on the ground that it caused delay and obstruction in the implementation of the Government Policies. By the 44th Amendment Act, 1978, all the Tribunals other than Military Tribunals were again brought under the supervision of the High Court.

40. Article 227 of the Constitution has been the subject matter of various decisions. In the case of Baby v. Travancore Devaswom Board, (1998) 8 SCC 310, the Apex Court held that the powers of the High Court under Article 227 are in addition to the powers of revision conferred on it by the other legislation.

41. In the case of Achutananda Vadya v. Prafullya Kumar Gayen and others, (1997)5 SCC 76, their Lordships of the Supreme Court observed that the power of superintendence under Article 227 is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the courts and Tribunals, inferior to High Court, have done what they were required to do. The High Court can interfere under Article 227 in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority Page 45 of 50 C/SCA/14696/2016 CAV JUDGMENT or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material or resulting in manifest injustice.

42. In the case of Sadhana Lodh v. National Insurance Co. Ltd., (2003) 3 SCC 524, the Apex Court held that supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.

43. In the care of Mani Nariman Daruwala v. Phiroz N. Bhatena, AIR 1991 SC 1494, the Apex Court indicated that in exercising its jurisdiction under Article 227 of the Constitution of India the High Court could set aside or ignore the findings of fact of an inferior Court or tribunal if there was no evidence to justify such a conclusion.

44. Way back in 1954, the Supreme Court, in the case of Waryam Singh v. Amarnath (1954) SCR 565, has observed as under :

"The power of superintendence conferred by Art.227 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."

The powers under Article 227, therefore, are to be sparingly used. This authority has been consistently followed by the Supreme Court of Page 46 of 50 C/SCA/14696/2016 CAV JUDGMENT India.

45. In the case of Estralla Rubber vs. Dass Estate (P.) Ltd., 2001 (8) SCC 97 : (AIR 2001 SC 3295 : 2001 AIR SCW 3544), the Supreme Court has observed while commenting upon the scope and ambit of Article 227 that the Article does not confer an unlimited prerogative upon the High Court to correct all wrong decisions or to prevent hardships caused thereby. It is then observed by the Supreme Court of India that the power under Article 227 can be exercised to interfere with orders of the lower Courts and Tribunals only in cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice.

46. The Supreme Court in the case of Ouseph Mathai and others vs. M. Abdul Khadir, 2002 (1) SCC 319 : (AIR 2002 SC 110 : 2001 AIR SCW 4672), the Supreme Court of India has observed about Article

227. It lays down categorically that a petitioner cannot invoke jurisdiction under Article 227 as a matter of right. A petition under Article 227 should be treated like an extension of a statutory appeal or revision. Then it has been observed in this decision while speaking about the scope of Article 227 that mere wrong decision is not a ground for exercise of jurisdiction under Article 227. The High Court may intervene under Article 227 only where it is established that lower Court or Tribunal has been guilty of grave dereliction of duty and flagrant abuse of power. Where a statutory right of revision is provided and is exercised, it is exercised to point out infraction of law whether minor or major. It invites exercise of an important jurisdiction within the limits in which it is conferred on a particular Court or a Tribunal. To read dereliction of duty in every such order only to clothe this Court with a jurisdiction under Article 227 is not permissible.

Page 47 of 50 C/SCA/14696/2016 CAV JUDGMENT

47. In the case of Nagendra Nath Bora v. Commissioner of Hills Division and Appeals (AIR 1958 SC 398), the Constitutional Bench of the Supreme Court has explained the power of the High Court under Article 227 of the Constitution in the following manner:

"The powers of judicial interference under Article 227 with orders of judicial or quasi judicial nature are not greater than the powers under Article 266. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 the power of interference is limited to seeing that the tribunal functions within the limits of its authority."

48. In the case of Bhutnath Chatterjee v. State of West Bengal, (1969) 3 SCC 675], the Supreme Court has held:

"The District Court held that compensation payable to the owners of land had to be determined on the basis of the marketvalue on the dates of the notifications, dated November 2, 1956 and June 3, 1958 and not on the basis of the notification, dated January 12, 1955. To revise that decision, jurisdiction of the High Court under Article 227 of the Constitution could not be exercised. Normally, the High Court exercises jurisdiction under Article 227 of the Constitution to ensure that a Subordinate Court or Tribunal does not transgress the limits of its jurisdiction. The jurisdiction with which the High Court is invested is not appellate; it cannot seek to correct what it regards as merely an error of law or fact."

49. In the case of Babhutmal Raichand Oswal v. Laxmibai [(1975) 1 SCC 858], a Bench consisting of three Judges have explained the scope and power of the High Court under Article 227 in the following manner:

"The power of superintendence of High Court under Article 227 being extraordinary is to be exercised most sparingly and only in appropriate cases. This power, as in the case of certiorari jurisdiction, cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court Page 48 of 50 C/SCA/14696/2016 CAV JUDGMENT of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or tribunal final on facts. The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate Court or tribunal. It's function is limited to seeing that the subordinate Court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re appreciating it."

50. In the case of Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566, the Apex Court has explained the power and scope under Article 227 in the following manner:

"A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority" and not to correct an error apparent on the face of the record much less an error of law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision."

51. Thus, in the overall view of the matter, I am convinced that no case is made out to disturb the order passed by the revenue tribunal. I see no good reason to exercise my supervisory jurisdiction under Article 227 of the Constitution of India. The petitioners have failed to establish in any manner that the findings recorded by the tribunal could be termed as perverse. Unless the findings recorded by the tribunal is shown to be perverse, it would not be open for this Court to disturb the same. There is no illegality or impropriety in the order passed by the tribunal. The order passed by the tribunal is eminently just and proper and the same is not required to be interfered with by exercising powers under Article 227 of the Constitution of India.

Page 49 of 50 C/SCA/14696/2016 CAV JUDGMENT

52. This application, therefore, fails and is hereby rejected. Rule is discharged. Adinterim relief, if any, stands vacated.

(J.B.PARDIWALA, J) aruna Page 50 of 50

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