Code of Civil Procedure, 1908 – Or.VII, r.11(d) – Maharashtra Tenancy and Agricultural Lands Act, 1948 – ss.32G, 32M, 85 and 85-A – The plaintiffs’ case that one ‘H’ died in the year 1946 and thereafter a suit was filed by his heirs in the year 1947 – In the said suit, the High Court appointed a Receiver and he took over the possession and management of the properties – Certain sales through Agricultural Lands Tribunal and mutation in the revenue records were effected thereafter without the knowledge and behind the back of the heirs – Thereafter, another suit was filed by the persons claiming to be legal representatives and successors in title of one ‘H’ in the year 1987 for setting aside an order passed by the Agricultural Lands Tribunal in a tenancy case u/s. 32G of the Maharashtra Tenancy and Agricultural Lands Act, 1948 and for setting aside a sale certificate issued u/s.32M of the 1948 Act – The defendant took the defence that the plaint was liable to be rejected u/Or.VII, r.11(d) CPC as (a) that the suit filed in the year 1987 challenging the action of the competent authorities under the Act carried out way back in 1963 and 1964 was barred by limitation; and (b) that in any case s.85 of the 1948 Act bars the jurisdiction of civil Court – Accordingly, the civil Court rejected the plaint on both the points raised by the defendant – The Regular First Appeal by the plaintiffs was dismissed by the High Court – Before the Supreme Court, it was contended by the appellants/plaintiffs that only after making inspection of the records in connection with the suit land available in the office of defendant No.3 (Court Receiver) that they came across the correspondence and documents relating to the transactions and that the proceedings before the Agricultural Lands Tribunal (ALT) were collusive, fraudulent and null and void – The respondent contended that the against the orders passed u/ss.32G and 32M the alternate remedy is u/s.74 before the Appellate authority of the 1948 Act – Held: In the instant case, the plaintiffs assert in no uncertain terms that notices were never ordered to them nor served on them – Therefore, the answer to the issue regarding limitation, will depend upon the evidence with regard to the issuance and service of notice and the knowledge of the plaintiffs – The trial Court as well as the High Court were not right in rejecting the plaint on the ground of limitation, especially in the facts and circumstances of this case – The civil Court as well as the High Court refused to follow the procedure prescribed by s.85-A of the 1948 Act, on the short ground that the same could be invoked only in cases where the issues covered by the Act have not already been settled, decided or dealt with by an authority competent under the Act to do so – Collusion and fraud are the main planks on which the plaintiffs have built up their case – The question whether the order of the ALT and the sale certificate issued thereafter are the product of fraud and collusion, cannot be determined by the Appellate or Revisional authority u/s. 74 of the 1948 Act – Further, the verasity of argument u/s. 88-B(1)(d) of the 1948 Act has not been tested before the trial Court or the High Court – Therefore, the civil Court’s jurisdiction cannot be said to have been ousted completely – Hence, the trial Court as well as the High Court committed error in rejecting the plaint u/Or.VII, r.11(d) – The judgment and decree of the Trial Court as well as the High Court are set aside and the suit is restored to file.
Allowing the appeal, the Court
HELD: 1. There was rejection of plaint on the ground of limitation. It is needless to emphasis that limitation is a mixed question of fact and law. It is the case of the appellants/plaintiffs that only after making inspection of the records in connection with the suit land available in the office of defendant No.3 (Court Receiver) that they came across the correspondence and documents relating to the transactions and that the proceedings before the ALT were collusive, fraudulent and null and void. The appellants/plaintiffs have even questioned the authority of the Court Receiver to represent them in the tenancy proceedings. [Para 10][111-B-C]
2. The above averments may or may not be true. But if the plaintiffs succeed in establishing the above averments, the issue of limitation cannot be put against the plaintiffs. Generally a party, who never had any notice of a particular proceeding before a quasijudicial authority, is entitled to approach the Court upon gaining knowledge of the proceedings. Limitation cannot be put against such a party. [Para 11][111-D-E]
3. This Court is not dealing here with a case where notices were ordered to be issued, but were not or could not, be served on necessary and proper parties. It is a case where the plaintiffs assert in no uncertain terms that notices were never ordered to them nor served on them. Therefore, the answer to the issue regarding limitation, will depend upon the evidence with regard to the issuance and service of notice and the knowledge of the plaintiffs. Hence, the Trial Court as well as the High Court were not right in rejecting the plaint on the ground of limitation, especially in the facts and circumstances of this case. [Para 12][111-E-F]
4. Though Section 85(2) of the Maharashtra Tenancy and Agricultural Lands Act, 1948 mandates that no order of the Mamlatdar, the Tribunal, the Collector or the State Government passed under the Act shall be questioned in any Civil or Criminal Court, the bar contained therein stands diluted to some extent under Section 85-A. [Para 21][114-G-H]
5. Section 85A inserted by Bombay Act 13 of 1956 prescribes a two stage procedure for the Civil Court to follow, whenever a suit is instituted, despite the bar contained in Section
85. In the first stage, the Civil Court should stay the suit and refer the issues to the competent authority under the Act for determination. In the second stage, the Civil Court should dispose of the suit in accordance with the procedure applicable thereto, after receipt of the decision of the competent authority, to whom the issues were referred for a decision under the Act. [Para 22][115-A-B]
6. If the bar under Section 85(2) was absolute, the Civil Court would have no option except to dismiss the suit. If the bar of jurisdiction is absolute, the question of the Civil Court staying further proceedings in the suit, referring the issues for the adjudication of the competent authority under the Act and disposing of the suit after receipt of a decision from the competent authority, would not arise. [Para 23][115-B-C]
7. The City Civil Court as well as the High Court refused to follow the procedure prescribed by Section 85-A of the Act, on the short ground that the same could be invoked only in cases where the issues covered by the Act have not already been settled, decided or dealt with by an authority competent under the Act to do so. The Collector is the appellate authority under Section 74. Under Section 76-A, the Collector even has suo motu power of revision, even in cases where no appeal has been filed. Section 79 of the Act prescribes a period of 60 days as the limitation for filing an appeal or revision. Therefore, it is contended by the respondents that a party who suffered an order from the ALT and who chose not to challenge the same by way of an appeal or revision for a period of more than two decades, cannot resurrect his right to avail statutory remedies, first by filing a suit and then seeking recourse to Section 85-A. [Para 24] [115D-G]
8. But the contention of the respondents overlooks an important facet of the case set up by the plaintiffs. According to the plaintiffs, the Estate was in the administration of the Court Receiver and that in collusion between the Court Receiver and the Revenue authorities, the sale as well as mutation took place without any notice to any of the interested parties. Collusion and fraud are the main planks on which the plaintiffs have built up their case. The question whether the order of the ALT and the sale certificate issued thereafter are the product of fraud and collusion, cannot be determined by the appellate or revisional authority under the Act. In any case it is contended by the appellants that by virtue of Section 88-B(1)(d) of the Act, none of the provisions of the Act, except a few, are applicable, “to lands taken under management temporarily by the Civil, Revenue or Criminal Courts by themselves, or through receivers appointed by them, till the decision of the title of the rightful owners”. The veracity of such argument has not been tested before the Trial Court or the High Court. This Court does not know whether the exemption under Section 88-B was raised at all by the appellants/plaintiffs. But it is a legal issue which goes to the root of the matter. Therefore, the Civil Court’s jurisdiction cannot be said to have been ousted completely. The Civil Court was obliged to see at least whether the appointment of a Receiver for the administration of the Estate of a deceased person would actually fall within the mandate of Clause(d) of Sub-section(1) of Section 88-B. [Para 25][115-H; 116-A-E]
P. V. Guru Raj Reddy v. P. Neeradha Reddy and Others (2015) 8 SCC 331 : [2015] 1 SCR 1108; Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar (2018) 6 SCC 422 : [2018] 3 SCR 442; Ram Niwas (Dead) v. Bano (Smt.) & Ors. (2000) 6 SCC 685 : [2000] 2 Suppl. SCR 39; Rajasthan Housing Board v. New Pink City Nirman Sahakari Samiti Limited & Anr. (2015) 7 SCC 601 : [2015] 5 SCR 365 – referred to.
Murlidhar Bapuji Value v. Yallappa Lalu Chaugule (1994) SCC Online Bom 72; Parvathathammal v.
Sivasankara Bhattar and Others (1951) SCC Online Mad 23 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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