Partly allowed

1. Suresh J. Thanawala, Bombay. and Another. v. 1. Union of India, Mumbai and Two Others.

Bombay HC16 Nov 2011APP/921/2010

Case brief

AI extract

What is this about?

Appeals against a Single Judge's order dismissing motions to reject plaints. The Division Bench held the lower court erred in the sequencing of issues regarding limitation and jurisdiction. The appeals were allowed, impeached orders set aside, and matters remanded for de novo consideration.

What did the court decide?

The impugned orders are set aside and the notices of motion are remitted to the Single Judge for de novo consideration and disposal in accordance with law.

1. Suresh J. Thanawala, Bombay. and Another. Vs 1. Union… — Property and Title | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.979 OF 2010
IN
NOTICE OF MOTION NO.2466 OF 2002
IN

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SUIT NO.3227 OF 1997

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1.Suresh J.Thanawala & Anr.
vs.

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...Appellants

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1.Union of India & Ors....Respondents

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AND

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APPEAL NO.804 OF 2010 IN

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NOTICE OF MOTION NO.3464 OF 2002 IN

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SUIT NO.3225 OF 1997

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1.Suresh J.Thanawala & Anr....Appellants
vs.

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1.Union of India & Ors....Respondents

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AND

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APPEAL NO.921 OF 2010 IN

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NOTICE OF MOTION NO.2465 OF 2002 IN

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SUIT NO.3226 OF 1997

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1.Suresh J.Thanawala & Anr.
vs.

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...Appellants

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1.Union of India & Ors....Respondents

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AND

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APPEAL NO.467 OF 2011 IN

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NOTICE OF MOTION NO.2464 OF 2002 IN

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SUIT NO.3225 OF 1997

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1.Lok Housing & constructions Ltd. ...Appellant vs.

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1.Union of India & Ors. ...Respondents

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AND

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APPEAL NO.469 OF 2011 IN

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NOTICE OF MOTION NO.1465 OF 2002 IN SUIT NO.3226 OF 1997

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1.Lok Housing & constructions Ltd. ...Appellant vs.

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1.Union of India & Ors. ...Respondents

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AND

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APPEAL NO.470 OF 2011 IN

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NOTICE OF MOTION NO.2466 OF 2002
IN

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SUIT NO.3227 OF 1997

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1.Lok Housing & constructions Ltd. ...Appellant vs.

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1.Union of India & Ors. ...Respondents

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Mr.Y.S.Jahagirdar, Sr.Advocate @ Mr.S.B.Kotak i/b.
Purnanand & co., for Appellants in Appeal Nos.979/10,
804/10, 921/10, and for Respondent nos.1 & 2 in Appeal
469/11 and for Respondent nos.2 & 3 in Appeal 470/11.

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Mr.R.Subramaniam i/b. Udawadia & Udeshi, for Appellants

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in Appeal nos.467/11, 469/11, 470/11.

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Mr.D.J.Khambata, ASG i/b. Dhiren H.Shah for Union of
India in Appeal nos.804/10, 467/11, 469/11, 470/11.

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Mr.S.R.Rajguru i/b. Dhiren H.Shah, for Union of India in
Appeal no. 921/10.

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Ms.S.Sridharan, AGP for State-Respt.3 in Appeal no.804/10
& for Respt.no.3 & 4 in Appeal no.921/10.

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Mr.P.G.Lad, AGP for State-Resp.3 in Appeal 979/10.

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---
CORAM: D.K.DESHMUKH &
ANOOP V. MOHTA, JJ.

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DATED: 16th November,2011.

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P.C.:- (Per D.K.Deshmukh, J.)

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1.It is common ground that the facts and
law involved in these appeals are similar. The
order of the learned Single Judge which is
impugned in these appeals is also common order,
therefore, all these appeals can be conveniently
disposed of by a common order.

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2.Three suits have been filed by the
respondents in these appeals in relation to the
lands which are described in the plaint. The
present appellants are the defendants in those

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suits. The defendants in the suits took out
notices of motion under Order 7 Rule 11 of the
Civil Procedure Code for rejection of the plaints
on the ground that the suits have been filed
beyond the period of limitation laid down under
Section 20 of the Maharashtra Land Revenue Code,
1966. Those notices of motion were allowed by the

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learned Single Judge of this Court. An appeal
filed against that order was also dismissed. A
Special Civil Appeal no.6508-05 of 2001 was filed
before the Hon�ble Supreme Court by the present
respondent/original plaintiff challenging the
order of the learned Single Judge and the
Division Bench. The Supreme Court disposed of
that appeal making the following observations:-

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�Undoubtedly, in the Plaint, the
Appellantshaveprayedfor
condonation of delay of the period
of limitation as prescribed under
Section 20 of the Maharashtra Land
Revenue Code. However, the learned

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Solicitor General submitted that the
main relief is for a declaration
that the Appellants are the owners
of the suit land. The learned
Solicitor General also submitted
that the main question would be
whethertheprovisionsof
Maharashtra Land Revenue Code and
Section 20 herein applied to such a
Suit.Hepointedoutthat
Respondents/Defendants had not even
filed a written statement in the
suit. He submitted that it was open
for the Appellants/Plaintiffs to
amend the suit. The learned
Solicitor General submitted that the
Appellants/Plaintiffs will amend the
Plaint, if the suit is restored to
the file. He stated that the
Appellants/Plaintiffs would move for
necessary amendments within a period
of 2 weeks from today.

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We do not express any opinion on
merits. However, in our view, this
is not a matter which should have
been disposed of in such summary
manner. The Appellants/Plaintiffs
should be allowed to carry out the

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amendments, which they would have
been entitled in law to do so if the
Plaint was not rejected.

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We, therefore, set aside the
impugned order and the order of the
learned Single Judge dated 17th
January,2000. The suit stands
restored to the file of the High
Court. We permit the Plaintiffs to
carry out necessary amendments to
the plaint if a motion for it is
made within a period of 2 weeks from
today. After the amendments are
carriedouttheRespondents/
Defendants shall file their written
statement within a period of 4 weeks
thereafter.

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Weclarifythatthe

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Respondents/Defendants will be at
liberty to take up any or all
contentions. They are at liberty to
fileanApplicationraising
preliminaryobjectionincluding
objection as to the maintainability
of the Suit on ground of limitation.
If such an application is filed the
High Court is requested to dispose

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of the same on merits within a
period of 6 months from the date of
its filing.

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With these directions the
Appeals are allowed. There will be
no Order as to costs.� (emphasis
supplied)

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3.Pursuant to the liberty granted by the
Supreme Court, the plaintiff amended the plaint,
the defendants filed their written statement. The
defendants thereafter took out notices of motion
for rejection of plaint under Order 7 Rule 11 of
the Civil Procedure Code. The plaintiff took out
various applications for the purpose of having

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all issues in the suit to be tried together and
also sought order for framing of issues in the
suit as a preliminary issue on �Whether the suit
is barred by the law of Limitation.� Pursuant to
those applications preferred by the plaintiff, an
issue was framed which reads as under:-

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�Whether the claim in the suit is
barred by the Law of limitation as
provided under Section 20 of the
Maharashtra Land Revenue Code,1966
or under the Limitation Act,1963, as
alleged by the defendants?�

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Thereafter, the plaintiff examined two witnesses
viz. Dr.Mukerjee and Mr.Tiwari. The learned
Single Judge of this Court thereafter heard the
parties and passed a common order in all the
notices of motion dated 15.4.2009. The learned
Single Judge dismissed the Notices of Motion
taken out by the defendants for rejection of the

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plaint. The present appeals are directed against
the order of the learned Single Judge.

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4.After having heard the learned Counsel
appearing for both the sides in detail, in our
opinion, the order of the learned Single Judge
which is impugned in these appeals is liable to
be set aside and the matter is liable to be

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remitted back to the learned Single Judge for
denovo consideration and disposal. Our reasons
for reaching this conclusion are as follows:-

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In the plaint, the plaintiff has claimed

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a decree of declaration that the plaintiff is the
owner of the suit land and that the defendants
have no right, title and interest in the suit
land. The plaintiff has also sought declaration
that the order passed by the Collector under
Section 20 of the Maharashtra Land Revenue Code
and the order passed by the State Government in
Revision confirming that order, are ab-initio
void. The plaintiff has also sought a decree for
possession of the suit lands. The relevant
prayers are prayer clause (a), (ba) and (d). It

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is obvious that the decree claimed by prayer

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clause (d) is consequential to the grant of

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decree claimed by prayer clause (a). It is also
obvious that the Court will not be able to
consider the relief claimed by prayer clause (a)

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without first considering and granting relief
claimed in terms of prayer clause (ba).
Therefore, unless the Court first considers the
question of grant or otherwise of decree in
favour of the plaintiff in terms of prayer clause
(ba), the reliefs claimed in terms of other
prayer clauses of the plaint cannot be
considered. By prayer clause (ba) the plaintiff
has claimed declaration that the order of the
Collector and the State Government passed under
Section 20 of the Maharashtra Land Revenue Code
is ab-initio void. Perusal of the provisions of
Section 20 of the M.L.R.C shows that the
provision vests jurisdiction in the Collector or
Survey Officer to decide the claim made by or on
behalf of the Government in relation to the title

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to any land or any claim made by any person as
against the Government. In the present case,
admittedly, the Collector has already made an
order declaring that the defendants in these
suits have title to the suit land. Therefore,

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the principal relief claimed in the suit is
decree of declaration that the order of the
Collector made under Section 20 of the MLRC is
ab-initio void. The defendants have taken out
notices of motion for rejection of the plaint
relying on the provisions of sub-section 4 of
Section 20 of MLRC claiming that the suit for
claiming a decree of declaration that the order
made under Section 20 of MLRC is void or is
liable to be set aside or claiming a relief which
is inconsistent with the declaration made in the
order made under Section 20 of MLRC, is not filed
within the period of limitation provided by sub-
section 4 of Section 20 of MLRC. Perusal of the
order of the learned Single Judge which is
impugned in the appeal shows that he has divided
the issue framed which we have reproduced above,
in two parts viz.

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(i)Whether the suit is barred by the Limitation
Act,1963 and (ii) Whether the claim in the suit

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is barred by limitation as provided under Section

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20 of the MLRC. Perusal of the order of the
learned Single Judge shows that the learned
Single Judge instead of considering first the
question �whether the suit is filed within the
period of limitation as provided by sub-section 4
of Section 20 of the Maharashtra Land Revenue
Code�, has taken up for consideration the issue

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�whether the suit is barred by limitation as
provided under the Limitation Act,1963.� In our
opinion, this approach is erroneous because
unless first the issue no.(ii) viz. �whether the
suit is filed after expiry of the period provided
by sub-section (4) of Section 20 of MLRC�, is
considered and decided in favour of the
plaintiff, there is no question of consideration
of the issue �whether the suit is barred by the
Limitation Act,1963.� It is to be noted here
that by the order made under Section 20 of the
MLRC by the Collector, there is already a
declaration of title of the defendants made.

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Unless first the plaintiff satisfies the Court

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that the suit of the plaintiff for a decree of
declaration that the order made under Section 20
of the MLRC is void, is within the period of
limitation, the question of considering the issue

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�whether the suit for declaration of title of the
plaintiff to the suit land is filed within a
period of limitation provided by the Limitation
Act�, does not arise. What is further to be seen
is that from the order of the learned Single
Judge it is apparent that he has not considered
the question �whether the suit has been filed,
for decree of declaration that �the order passed
under section 20 of MLRC is void�, within the
period of limitation provided by sub-section 4 of
Section 20 of the MLRC. What the learned Single
Judge has actually considered is �whether the
order passed under Section 20 of the MLRC by the
Collector is a void order�. In our opinion,

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�whether the order passed by the Collector is a
void order�, is an independent issue. The finding
recorded by the learned Single Judge on the issue

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�whether the claim is filed within the period of
limitation provided by Section 20 of the MLRC� is
that the order passed under Section 20 of MLRC is
void. The issue �whether the suit for a decree of
declaration that the order passed by the
Collector is void, is filed within the period of
limitation provided under sub-section 4 of
Section 20 of the MLRC� has not been considered
at all. The result is that by the order of the
learned Single Judge passed on a motion filed
under Order 7 Rule 11 of the Civil Procedure
Code, the suit of the plaintiff stands decreed in
terms of prayer clause (ba) of the plaint. In
our opinion, if according to the learned Single
Judge for deciding the issue as to �whether the
suit for a decree of declaration that the order

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of the Collector is ab-initio void, is filed
within the period of limitation provided by sub-
section 4 of Section 20 of the MLRC� requires
consideration of the main issue viz. �whether the
order passed under Section 20 of the MLRC by the

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Collector is ab-initio void, then the learned
Single Judge should have considered that issue
first. The order of the learned Single Judge has
resulted in deciding, while disposing of the
motion taken out under Order 7 Rule 11 of CPC,

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one of the principle issues in the suit. It
appears from the written statement filed on

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behalf of the respondents that they were
challenging the validity of the provisions of
sub-section 4 of Section 20 of the MLRC on the
ground that it is contrary to the provisions
contained in the Limitation Act which is a
central legislation. The learned Single Judge
has, however, nowhere considered the contention
of the respondents that the provisions of sub-
section 4 of Section 20 of the MLRC are invalid.

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5.In our opinion, the learned Single Judge
should have considered the question �whether the
period of limitation provided under sub-section 4
of section 20 of the MLRC will apply in relation

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to the suit which seeks a declaration that the
order passed by the Collector under sub-section 2
of Section 20 of the MLRC is ab-initio void and
patently without jurisdiction.� It is possible
to contend that the provisions of sub-section 4

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of Section 20 of the MLRC and the period of
limitation laid down thereunder will apply in

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relation to a civil suit which is filed for a

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decree for setting aside the order of the
Collector on merit and seeking decree which is
inconsistent with the order passed by the
Collector assuming that the Collector has
jurisdiction to make the order. The period of

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limitation laid down under sub-section 4 of
Section 20 of the MLRC may not apply in relation
to a civil suit which is filed for a decree of

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declaration that the order of the Collector made

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under sub-section 2 of Section 20 of the MLRC is

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void because it is patently without jurisdiction
or it is ab-initio void because the provisions of

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sub-section 2 of Section 20 of the MLRC are not

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applicable at all. However, for considering such
a question it would not be necessary to consider
whether the order made by the Collector in that
particular case is ab-initio void or not, the
question that will be required to be considered
is �whether to a suit filed claiming such a
decree, the period of limitation laid down under
section 4 of Section 20 of the MLRC applies or
not.� In our opinion, the learned Single Judge

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was not justified in deciding one of the
principle issues that arise in the suit viz.

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�whether the order passed by the Collector is ab-
initio void or not�, while deciding the question

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�whether the suit is filed within the period of
limitation provided by sub-section 4 of Section
20 of the MLRC. In our opinion, answer to that

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issue could have been that the suit has been
filed within the period of limitation provided by
sub-section 4 of Section 20 of the MLRC or the
suit has not been filed within the period of
limitation provided by sub-section 4 of Section

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20 of the MLRC or that the period of limitation
provided by sub-section 4 of Section 20 of the
MLRC does not apply because in the suit the
plaintiff is not seeking decree for setting aside
of that order but is seeking a declaration that
the order is patently without jurisdiction. In
our opinion, the issue �whether the order passed
by the Collector is ab-initio void or not�, has
to be independently tried on merit.

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6.What is further to be seen is that the
question �whether the suit is filed within the
period of limitation provided by the Limitation
Act� will have to be considered only after

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deciding the issue �whether the suit is filed
within the period of limitation provided by sub-

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section 4 of Section 20 of the MLRC. If the

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answer to that issue is that the period of
limitation provided by sub-section 4 of Section
20 of the MLRC does not apply, then only the
question of considering the issue �whether the

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suit is filed within the period of limitation
provided by the Limitation Act�, would arise. In
that case, the first question that will have to
be considered is �whether the suit for a decree
of declaration that the order of the Collector is
ab-initio void order, is filed within the period
of limitation provided by the Limitation Act,

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then the issue that will have to be considered is

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�whether the suit for declaration of title of the
plaintiff to the suit land is filed within the
period of limitation provided by the Limitation
Act.� Therefore, in our opinion, the approach

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adopted by the learned Single Judge in
considering the issues which arose for
consideration has been wrong. In our opinion, the
matter has not been approached in proper
perspective. We also find that one of the
contentions raised on behalf of the plaintiff was
that the period from 13.11.1965 to 12.6.1996 is
to be excluded under the provisions of Section 14

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of the Limitation Act. The learned Single Judge

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has not considered that issue.

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7.The learned Single Judge has held that

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the Collector had no jurisdiction to make the
order under Section 20 because the provisions of
Section 20 do not apply to a dispute between the
Central Government and private party. The
observation of the learned Single Judge that the
dispute about ownership of the suit land was only
between the Central Government and the appellant
is not entirely correct because it is on record
that in the order which was challenged before the
State Government in the first round of litigation
a finding was recorded that the land belongs to
the State Government and the State Government
directed the Collector to hold enquiry under

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Section 20 while setting aside that order. The
learned Additional Solicitor General therefore,
did not defend the above finding of the learned
Single Judge, however, he submitted that as the
dispute about the ownership of the land was

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mainly between the Central Government and the
appellant, it can not be decided under Section
20. The question �whether the dispute about
ownership of the suit land is mainly between the
Central Government and the appellant� is not at

¶140

all considered by the learned Single Judge. For
deciding that question, evidence will have to be
appreciated to find out what was the stand taken
by the State Government about its ownership of
the land from time to time. In this connection,
it is to be noted that the Central government did
not challenge the order passed by the revenue
authorities holding that the land belongs to the
State Government. That order was challenged by
the appellants before the State Government. The
learned Single Judge has recorded a finding that

¶141

by successive conveyance deeds what is
transferred is the salt work and not the land.
However, while recording this finding, the
learned Single Judge has not considered the
following submissions made on behalf of the

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Central Government:-

¶144

�By GR No.344 dated 18th January,
1888, occupancy rights in respect of
the same were purchased by one
Pestomji Maneckji Chimodwala from
the then British government for
about Rs.1100/- for the purpose of
constructing salt work which was
opened in the year 1891 namely
Pestomshah Salt Work.�

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In view of the above stand taken by the central
Government, the question that will have to be
considered is �when salt pans are transferred,
would the occupancy rights in the land get
transferred or not�. In this connection, it will
also have to be inquired what does the term

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�occupancy rights� mean, whether the concept of
�ownership of land� and �occupancy rights in the
land� is different, considering the provisions of
the Land Revenue Code which was then in force and
the Land Revenue Code that is now in force.

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¶148

8.Taking overall view of the matter,

¶149

therefore, and considering that the property
involved in the suit is extremely valuable
property, in our opinion, it will be appropriate
to remit the notices of motion back to the
learned Single Judge for denovo consideration in
accordance with law. In the result, therefore,
the appeals are disposed of in the following

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terms:-

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All the appeals succeeds in part. The

¶152

order impugned in the appeals are set aside. The
Notices of Motion are remitted back to the

¶153

learned Single Judge for denovo consideration and
decision in accordance with law.

¶154

(D.K.DESHMUKH, J.)

¶155

 (ANOOP V.MOHTA, J.)

1. Suresh J. Thanawala, Bombay. and Another. v. 1. Union of India, Mumbai and Two Others.

Case brief

What is this about?

What did the court decide?

1. Suresh J. Thanawala, Bombay. and Another. v. 1. Union of India, Mumbai and Two Others.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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