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PETITIONER: AJUDH RAJ AND ORS.

       Vs.

RESPONDENT: MOTI, S/O MUSSADI

DATE OF JUDGMENT03/05/1991

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1991 AIR 1600            1991 SCR  (2) 690  1991 SCC  (3) 136        JT 1991 (2)   591  1991 SCALE  (1)896

ACT:      Himachal  Pradesh Abolition of Big Landed  Estates  and Land   reforms  Act,  1953:  Section  27(4)-Acquisition   of proprietary  rights-Adverse order made under section  27(4)- Suit to set aside order-Period of Limitation-What is.      Limitation Act, 1963: Articles 65, 100 and  133-Adverse order   made  under  a  Special  Act-Order  Passed   without jurisdiction-Suit    challenging   the    order-Period    of Limitation-Article 65-Applicability of.

HEADNOTE:      The  respondent-defendant  claimed the  benefits  under Section  27(4)  of  the Himachal Pradesh  Abolition  of  Big Landed  Estates and Land Reforms Act, 1953 alleging that  he was  a  sub-tenant  cultivating  the  disputed  land.    The Compensation  Officer accepted his claim and passedan  order in his favour under Section 27(4).  The appellants’  father, Plaintiff,  challenged  the order  of  Compensation  Officer contending  that  the  defendant  was not  entitled  to  the acquisition  of  the proprietary right under  section  27(4) because he was merely a labourer employed by him and he  had never cultivated the disputed land.  Both the Trial and  the Appellate   court   accepted  the   plaintiff’s   case   and concurrently  held that the defendant was not  a  sub-tenant and  consequently  the  order passed  in  his  favour  under Section  27(4)  was  without  jurisdiction.   The  plea   of Limitation was rejected and the plaintiff’s suit was decreed by  holding  that  he being the  tenant  in  possession  was entitled to the right under section 27(4) of the Act.     On further appeal the High Court dismissed the plaintiff suit  on the ground that the suit having been filed after  a period  of more than three years from the date of the  order under section 27(4) it was barred by limitation.  Hence this appeal against the decision of the High Court.      Allowing  the appeal and setting aside the judgment  of the High court, this Court,      HELD:  1.  The principle for deciding the  question  of limitation in                                                        691 a  suit filed after an adverse order under a Special Act  is well-settled.   If  the order impugned in the suit  is  such

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that it has to be set aside before any relief can be granted to  the  plaintiff  the provisions of Article  100  will  be attracted and if no particular Article of the Limitation Act is  applicable  the suit must be governed by  the  residuary Article   113,   prescribing  a  period  of   three   years. therefore,  in  a suit for title to an  immoveable  property which  has been the subject matter of a proceeding  under  a Special  Act  if an adverse order comes in the  way  of  the success  of  the plaintiff, he must get  it  cleared  before proceeding further.  On the other hand if the order has been passed  without  jurisdiction, the same can  be  ignored  as nullity,  that is, non-existent in the eye of law and it  is not  necessary  to  set it aside; and such a  suit  will  be covered by Article 65 [693C-D]      1.1  In the instant case the concurrent  findings  were that  the plaintiff was the owner in cultivating  possession of the land and the defendant was merely a labourer  without any right of the tenant or a sub-tenant.  If the land was in cultivating  possesion  of the  plaintiff, the  compensation Officer  did not have the jurisdiction to pass any order  in defiance  of section 27(2) and the land did not vest in  the State  at  all.   Further, for the  additional  reason  that defendant  was not a tenant of the land the order passed  in his   favour   under  Section  27(4)   was   again   without jurisdiction.   Therefore,  in  absence  of  the  conditions necessary  for the exercise of power under Section 27(4)  of Officer lacked jurisdiction to act and it was not  necessary for  the Civil Court to formally set aside his order  before passing  a decree.  What necessitated the plaintiff to  come to  the civil court was the challenge to his title, and  the suit  must  be  held  to be  covered  by  Article  65,  and, therefore, not barred by shorter period of limitation either Article 100 or Article 113. [693E, 694B-C-D]      Sheo Lal and Ors. v. Sultan & Ors., [1970] 2 S.C.R. 405 and  Mohd.  Murtiza Khan v. State of M P. and  Ors.,  [1966] M.P.L.J., referred to.      State  v. Sadh Ram, I.L.R. (HP) 1973 (2) 235 and  Gangu and Ors. v. Mahanraj Chand and Ors., A.I.R. 1934 Lahore 384, held inapplicable.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2225  of 1991.      From  the  Judgment and Order dated 12.10.1990  of  the Himachal Pradesh High Court in R.S.A. No. 134 of 1979.                                                        692      C.K. Mahajan and Ashok Grover for the Appellants.      The Judgment of the Court was delivered by      SHARMA.  J.  Special leave is granted.  The  appeal  is directed  against  the judgment of the  High  Court  setting aside  the  decree passed by the trial court and  the  first appellate court in favour of the plaintiffs appellants,  and dismissing  their  suit, on the ground of  being  barred  by limitation.      2.   The  subject  matter  of  the  present   case   is agricultural land in Himachal Pradesh belonging to one  Sham Sunder,  the  original  plaintiff since dead,  who  was  the father  of the appellant No. 1 and the grand-father  of  the appellants  No.2  and  3.  The  defendant-respondent,  Moti, alleging  to be a sub-tenant cultivating the  land,  claimed the  benefits  under Section 27(4) of the  Himachal  Pradesh Abolition of Big Landed Estates and Land Reforms Act,  1953, hereinafter  referred to as the Act.  Notice was  issued  to

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Sham  Sunder which according to his case was not  served  on him.  The claim of Moti was accepted, amount of compensation payable under Section 27(4) of the Act was determined by the Compensation Officer and consequential orders were passed in his  favour.   The  present suit was filed  by  Sham  Sunder challenging the aforesaid orders on the allegation that Moti was  merely  a  labourer  employed  by  him  and  he   never cultivated  the  disputed land and he,  therefore,  was  not entitled  to the acquisition of the proprietory right  under Section  27  (4) of the Act.  The Suit was resisted  by  the defendant.   Both the trial court and the  appellate  court, accepted  the  plaintiff’s case and concurrently  held  that Moti was not a sub-tenant and hence, the order passed by the Revenue Officer in his favour under Section 27(4) of the Act was  without  jurisdiction.   The  plea  of  limitation  was rejected  and the suit was decreed holding that Sham  Sunder being  the  tenant in possession was entitled to  the  right under Section 27(4) of the Act.      3. In a further appeal under Section 100 of the Code of Civil  Procedure,  the defendant contended before  the  High Court that the suit having been filed after a period of more than  three  years from the day of the order  under  Section 27(4)  of  the  Act, was barred by  limitation.   The  Court agreed  with  him  and dismissed the suit  by  the  impugned judgment.  The High Court did not deal with any other aspect in  the case, stating that the defendant had not  urged  any other point in support of the second appeal.                                                        693      4.  In  the impugned judgment the High Court  has  held that  "as  a consequence of the Order  of  the  Compensation Officer  under  Section 27(4), the title in the  land  stood vested in the appellant", and merely because a longer period of  limitation is provided for recovery of possession  under Article  65 of the Limitation Act, the suit can not be  said to  be within the period of limitation.  Accordingly  either one year period under Article 100 or in the alternative  the three   years’  rule  under  Article  113  has   been   held applicable.  We do not think that the High Court is right.      5.   The  principle  for  deciding  the   question   of limitation  in a suit filed after an adverse order  under  a Special  Act is well-settled.  If the order impugned in  the suit  is such that it has to be set aside before any  relief can  be granted to the plaintiff the provisions  of  Article 100  will  be  attracted if no  particular  Article  of  the Limitation  Act is applicable the suit must be  governed  by the  residuary  Article 113, prescribing a period  of  three years.  Therefore,  in  a suit for  title  to  an  immovable property  which has been the subject matter of a  proceeding under a Special Act if an adverse order comes in the way  of the success of the plaintiff, he must get it cleared  before proceeding further.  On the other hand if the order has been passed  without  jurisdiction, the same can  be  ignored  as nullity,  that is, non-existent in the eye of law and it  is not  necessary  to  set it aside; and such a  suit  will  be covered by Article 65. In the present case the controversial facts have been decided in favour of the plaintiff-appellant and the findings were not challenged before the High  Court. The  position, thus, is that the plaintiff was the owner  in cultivating  possession of the land and the  defendant  Moti was merely a labourer without any right of a tenant or  sub- tenant.  The question is as to whether in this background it is necessary to set aside the order passed in favour of  the respondent  under Section 27(4) of the Act before  the  suit can  be  decreed or whether the plaintiff can get  a  decree ignoring  the  said order as void, in which  case  the  suit

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undoubtedly will be governed by Article 65.      6.  The provisions of Section 27(4) of the Act as  also the  other  provisions  are limited  in  their  scope.   The preamble indicates that the object of the Act is to  provide for  the abolition of the big landed estates and  to  reform the law relating to tenancies in the Himachal Pradesh.   The expressions  ’tenant’,  ’sub-tenant’ as also  other  similar expressions  have  to be understood in the sense  they  have been   used   in  the  other  statutes  dealing   with   the relationship  of landlord and tenant in agricultural  lands. Section 27 of the Act provides for a transfer by the law  of the right title and interest of the land owner to the State                                                        694 Government  under sub-section (1) Sub-section (2) is by  way of  an  exception with respect to land  under  the  personal cultivation of the land owner.  Sub-section (4) directs that the  right,  title  and  interest of  the  land  owner  thus acquired,  shall be transferred by the State, On payment  of compensation, to the tenant who cultivates such land.  Under this provision, the order in the present case was passed  in favour  of Moti.  If Moti was not a tenant or sub-tenant  he was not entitled to the benefits under the sub-section.   If the land was in cultivating possession of the plaintiffs, as held  in the present suit, the Compensation Officer did  not have the jurisdiction to pass any order in defiance of  sub- Section  (2) and the land did not vest in the State at  all. Further,  for  the  additional reason that Moti  was  not  a tenant  of  the land the order passed in  his  favour  under Section 27(4) was again without jurisdiction.  In absence of the  conditions  necessary for the exercise of  power  under Section 27(4) the Officer lacked jurisdiction to act and  it was not necessary for the civil court to formally set  aside his  order before passing  a decree.  What necessitated  the plaintiff  to come to the civil court was the  challenge  to his  title,  and  the suit must be held  to  be  covered  by Article 65, and, therefore, not barred by shorter periods of limitation either under Article 100 or Article 113.      7.  The  cases  relied upon by the High  Court  do  not support the impugned judgment.  In State v. Sadh Ram, I.L.R. (Himachal  Pradesh) 1973 (2) 235, the  Compensation  Officer had  passed  an  order  under  Section  27(4)  of  the  Act, transferring  the  proprietory  right  to  the   cultivating tenants  of the land, excluding the trees standing  thereon. The transferee tenants filed a suit in respect of the trees, and  the  High  Court  held that  the  suit  was  barred  by limitation  either  under Article 100 or Article  113.   The grievance of the tenant was not against the exercise of  the power  of the Compensation Officer under Section 27  (4)  of the Act, rather he relied upon the same.  The  observations, mentioned  below, from the judgment of Pathak, C.J.  (as  he then was) are enlightening and supporting the view expressed by us.          "This  is  not a case where the order made  by  the          Compensation   Officer   is  a  nullity.   If   the          Compensation Officer had ab initio no  jurisdiction          to  take the proceeding and make an order  therein,          he would have no jurisdiction to make any order  at          all.  In that event, the entire order made by  him,          including that part of it which is in favour of the          plaintiffs, would be a nullity." In the full Bench judgment of the Lahore High Court in Gangu and                                                   695 Others v. Mahanraj Chand and Others, A.I.R. 1934 Lahore  384 the decision on the question of limitation went against  the

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plaintiff  on account of the special facts an  circumstances of  the  case,  as  is clear  from  the  enunciation  of  the proposition (at page 389, column 2) to the effect that if it is necessary for a plaintiff to get rid of an order made  by an Officer of the Government, which stands in his way before he  can obtain a certain relief and in order to obtain  that relief he does not specifically ask for the setting aside of the order but merely for a declaratory decree still the suit should  be  deemed to be one to set aside an  order  falling within the ambit of Article 14.  It is material to note that in that case, it was essential for the plaintiff to have got the  order of the Collector set aside, before asking  for  a decree.      8.  Two cases of this Court, although not identical  in facts  nor  governed by the present Act,  support  the  view which we are taking.  In Sheo Lal and Ors. v. Sultan & Ors., [1970] 2 S.C.R. 405 the plaintiff filed a suit for a  decree for  redemption  after unsuccessfully moving  the  Assistant Collector  for  similar  relief  under  the  Redemption   of Mortgages  (Punjab  Act  2  of 1913) 1913,  and  a  plea  of limitation  by virtue of Article 14 of the  Limitation  Act, 1908,  was raised.  Agreeing with the High Court this  Court rejected  the  defence argument based on Article 14  on  the ground that in the facts of the case it was not necessary to set  aside  the  order of  the  Assistant  collector  before granting  a redemption decree.  The other decision in  Mohd. Murtiza  Khan v. state of M.P. and Others,  [1966]  M.P.L.J. 933  arose out of a suit in which the interpretation of  the provisions of the Bhopal Land Revenue Act was involved.   In similar  situation as in the present appeal before us,  this Court held that Article 14 of the Limitation Act, 1908,  had no  application  to the suit as the order under  the  Bhopal Land  Revenue Act had been passed without  jurisdiction  and could be ignored without getting it set aside.  Article  142 of the Limitation Act was applied.      9.  For  the reasons mentioned above we set  aside  the impugned  judgment of the High Court and restore the  decree passed  by  the  first  appellate  court.   the  appeal   is accordingly allowed with costs through out. T.N.A.                                  Appeal allowed.                                                        696