P (PLP)

THADANI, J.‑

This is an appeal from the decision of the learned District Judge of Nawabshah in which he affirmed the judgment and decree of the Subordinate Judge of Hyderabad in Suit No. 58 of 1940, in which the Subordinate judge had decreed the suit with costs. The suit was instituted by one Muhammad Abbas against the Province of Sind for a declaration and injunction valued at Rs. 200 in respect of a plot of land with buildings thereon measuring some 3,052 sq. feet situated in the village of Khan Kirio in Taluka Naushahrao Feroze. At the date of the institution of the second appeal in this Court, Muhammad Abbas was dead and his legal representatives have been brought on the record as respondents. The case of Muhammad Abbas was that he was the owner in possession of the property in suit by virtue of an exchange‑deed, dated 4th April 1934, some time later he built a few shops on the vacant plot to which the Banias of the adjoining village of Chatugarh objected and petitioned the Revenue Authorities alleging that there was, a well on this plot which was used by the public. The Deputy Collector of Naushahro made an enquiry into the allegations of the Banias and by his order, dated 18th January 1937, negatived their contention. The Banias appealed to the Collector of Nawabshah, who, on 16th June 1937, affirmed the order of the Deputy Collector. On 4th August 1938, however, the Revenue Commissioner in Sind set aside the order of the Collector of Nawabshah, dated 16th June 1937 and held that the plot in suit should remain a "Public Khad". Against the order of the Revenue Commissioner, Muhammad Abbas moved the Government of Sind which referred the matter to the Revenue Tribunal for decision. The Tribunal treated Muhammad Abbas's application as a revision application and rejected his claim Muhammad Abbas then filed, the present suit against the Province‑ of Sind for a declaration and injunction, The Province of Sind raised a. number of defences, one of them being that the suit was barred by limitation by, reason of the provisions of section 27 (3), Land Revenue Code, and ‑ Art: 14 Limitation Act. On the issue of limitation, both the trial Court and the first Appellate Court came to the conclusion that the: suit was not barred by limitation, but for different reasons. Mr. Lulla, for the Province of Sind contends that the present' suit should have been filed within a year of the order of the Revenue Commissioner, dated 4th August 1948, having regard to the provisions of section 37 (3), Land Revenue Code, and that as the suit was filed on 13th August 1940. it was time‑barred. On the issue of limitation, the learned Subordinate judge directed himself to the following question, whether the Revenue Authorities have power to decide the question as to the ownership of the plot under section. 37, and Revenue Code, and answered the question in the negative on the, authority of certain decisions in Secretary of State for India in Council v. Mushtaksing 7 SLR 169; H. H. Sir Agha Sultan Mohomed Shah Agha Alisha v. Secretary of State for India in Council A I R. 1914 Sind 119 and Malkajappa Ma4ivalapa v. Secretary of State for India in Council 14 Bom. L.R

332. But it is, plain that these decisions were given in cases which arose before 1912 when section 37, Land Revenue Code, was amended by the addition of sub sections (2Y.and (3). It is equally plain that the addition of subsection (2) to section 37 in 1912, under which the order in the present case, was manifestly made, rendered the decisions upon which the learned Subordinate judge relied quite inapplicable. The, learned Subordinate judge took the view that the order of the Revenue Commissioner .was not an act done in his official capacity so as to attract the provisions of Art. 14, Limitation Act or section 37, Land Revenue Code. Subsections (2) and (3) of section 37 read as follows:-- "(2) Where any property or any right in or over any property is claimed by or on behalf of the Crown or by any person as against the Crown, it shall be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claim. (3) Any suit instituted in any Civil Court after the expiration of one year from the date of any order passed under subsection (1) or subsection (2), or, if one or more appeals have been made against such order within the period of limitation, then from the date of any order passed by the final appellate authority, as determined according to section 204, shall be dismissed (although, limitation has not been set up as a defence) If the suit is brought to set aside such order or if the relief claimed is inconsistent with such order provided that in the case, of an order under sub section (2) the plaintiff has had due notice of such order.": It is clear from the facts of this case that when the Banias of Chhatugarh petitioned to the Deputy Collector complaining against the encroachment of Muhammad Abbas, the Deputy Collector took action under, subsection (2) of section 37, after complying with the formalities prescribed by that section. The notice, Exhibit 37, confirming the title of Muhammad Abbas to the property in suit reminds Muhammad Abbas. that a notice under Rule 29 (1) of the Rules framed under the Bombay Land Revenue Code was issued to him. The order of the Deputy Collector, was, therefore, an order made in. pursuance of section 37 (2), and although it was confirmed in appeal, by the Collector, the Revenue Commissioner by his order, dated 4th August 1938, held that the property was a public had, that is to say, Government property. We have then an order passed by the Revenue Coming dated 4th August 1938, in second appeal from on appeal made to tire Collector, and a suit instituted in any Civil Court after the expiration of one year from 4th August 1938, `shall be dismissed by reason of section 37 (3). Chapter XIII of the Bombay Land Revenue Code containing sections 203. and 204. relates to appeals and revision. For the purposes of subsection (3) of section 37, the question of revision is irrelevant. Under section 203, Bombay Land Revenue Code. In the absence of any express provision of this Act, or of any law for the time being in force to the contrary an appeal shall be from any decision or order passed by a Revenue Officer under this Act, or any other law for the time being in force, to that officer's immediate superior, whether such decision o: order may itself have been passed on appeal from a subordinate 'officer's decision or order or not.'' Under section 204, Bombay Land Revenue Code: ‑An appeal shall lie to the Provincial Government from any decision of order passed by a Commissioner or by a Survey Commissioner; except in the case of any decision or order passed by such officer on appeal from, a decision or order itself recorded in, appeal by any officer subordinate to him.'' There was therefore, no further appeal from the decision of the Revenue, Commissioner himself gave a decision on appeal from the appellate order of the Collector. For the purposes of limitation described by section 37 (3), Bombay Land Revenue Code, the order which is to be taken into consideration in this case is the order of 4th August 1938. The present suit having been filed in 1940; was clearly time‑barred and it must be dismissed‑ under subsection (3) of section 37, Bombay Land Revenue Code. It was contended by the respondents that under section 11, Bombay Revenue Jurisdiction Act of 1876, which says that: " No Civil Court shall entertain any suit against the Crown on account of any act or omission of any Revenue Officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in farce, as, within the period of limitation allowed for bridging such suit, it was possible to present". the word "appeals" must be deemed to include proceedings before the Revenue Tribunal in this case, and as the proceedings before the Tribunal ended in November 1939, the present suit filed in August 1940 was not liable to be dismissed. The respondents' advocate has not cited any authority in support of his contention; and we are unable to give effect to it. The learned District Judge did not dispose of the question of limitation arising out of subsection (3) of section 37, Land Revenue Code, in the manner in which the Subordinate judge had dealt with it. It is to be remarked that although in the memorandum of appeal to the District Court there was a reference to section 37 (3), Land Revenue Code, the learned District Judge in his judgment says, that the Government Pleader urged that the suit was brought under Art.

14. Limitation Act, and the learned District judge then proceeded to deal with the issue of limitation with reference to Art. 14, Limitation Act. The learned District Judge took the view that the provisions of subsection (2) of section 37, Land Revenue Code, were strictly complied with, and that the suit, therefore, was not time‑barred As we have stated in the earlier part of our judgment, the order of the Deputy Collector was clearly made in pursuance of subsection (2) of section 37, after complying with all the formalities, and subsection (3) expressly refers to an order pie under subsection (2). As an appeal to the Revenue Commission was made under the provisions of section 403, the suit shoe have been filed within one year of‑‑the date of the order of Revenue Commissioner, and as it was not a filed, the suit should, have been dismissed. Accordingly we set aside the judgment and decree of the first Appellate Court and dismiss the suit with costs throughout. We allow this appeal with costs on the respondents. H. M. A. Appeal allowed.