1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2464 OF 2002 IN SUIT NO. 3225 OF 1997 Union of India ...Plaintiffs vs. Suresh J. Thanawalla & Ors. ...Defendants with NOTICE OF MOTION NO. 2465 OF 2002 IN SUIT NO. 3226 OF 1997 Union of India ...Plaintiffs vs. Suresh J. Thanawalla & Ors. ...Defendants with NOTICE OF MOTION NO. 2466 OF 2002 IN SUIT NO. 3227 OF 1997 Union of India ...Plaintiffs vs. Suresh J. Thanawalla & Ors. ...Defendants Appearance in above matters :- Mr.R.B. Raghuwanshi, Additional Solicitor General with Mr.S.R. Rajguru with Ms.Nisha Valani for the Plaintiffs. Mr.Y.S. Jahagirdar, Senior Counsel with Mr.Brijesh Upadhyay i/b. M/s.Purnanand & Co. for Defendant Nos.1 and 2. Mr.T.N. Subramaniam, Senior Counsel i/b. M/s.U.U. & Berjis for Defendant No.3. 2 CORAM : V.M. KANADE, J. DATED : APRIL 15, 2009 P.C. :- 1. Heard the learned Counsel for the parties at length. 2. This Notice of Motion is taken out by defendant nos.1 and 2 seeking the following reliefs :- (a) that the Plaint filed by the Plaintiffs herein be rejected in accordance with Order VII Rule 11(d) of the Code of Civil Procedure, 1908; (b) that the Plaint filed by the Plaintiffs be rejected as the same is barred by the Law of Limitation 1963; (c) the issues raised by the Defendants Nos.1 and 2 by this Notice of Motion be decided as a preliminary issue; (d) pending the hearing and final disposal of the present Notice of Motion, Notice of Motion No.35 of 1998 taken out by the Plaintiffs be stayed; (e) for costs of the Notice of Motion; (f) for such further and other reliefs as this Hon'ble Court may deem fit and proper, considering the nature and circumstances of the case; 3. This case has a chequered history and in my view, it is necessary to give the chronology of events and a brief history and 3 background of this case before considering the rival contentions raised by the parties herein. 4. The plaintiffs - Union of India have filed the suit seeking a declaration of title in their favour in respect of two salt pan lands and seeking possession of the said lands from defendant nos.1 to 3. Defendant Nos.1 to 3, on the contrary, claims to be owners of the said lands, defendant Nos.1 and 2 pursuant to a sale deed which was executed in their favour sometime in 1941 and defendant no.3 by virtue of sale deed executed in his favour sometime in 1994. Prior to the filing of the suit by the Union of India, proceedings were initiated by defendant nos.1 and 2 before the revenue authorities for their names being entered into the record of rights pursuant to which their name was entered in the record of rights on 22nd December, 1967. Against the said order, these proceedings finally terminated in an order being passed by the Government of Revenue directing the Collector to make an inquiry in respect of the claim of the title made by defendant nos.1 and 2 herein. In the said inquiry which was conducted by the Collector under Section 20 sub-clause 2 of the Maharashtra Land Revenue Code, 1966, it was held that defendant nos.1 and 2 are the owners of the said property. Against the said order, the revision application was preferred under Section 257 of the said Code before the Minister of Revenue Department. The said 4 revision application was rejected on 12th June, 1996. 5. During the pendency of the proceedings before the revenue authorities, sometime in June-July 1983, the Salt Department issued notice comprising of certain documents dated June 30, and July 5, 1983 setting forth certain conditions/requisitions in relation to the license for manufacture of salt on the said salt pan lands and staking their ownership claim on the lands. Defendant nos.1 and 2 challenged the said notice by filing writ petition in this Court. The Division Bench of this Court by order dated July 29, 1991 directed the Salt Department to renew the license of defendant nos.1 and 2 subject to fulfillment of conditions therein. Being aggrieved by the said order, the Salt Department preferred a Special Leave Petition in the Apex Court. The said SLP was dismissed by the Apex Court by order dated 26th February, 1996 leaving the question of title of the lands open giving liberty to the Salt Department to pursue their remedy. 6. In the meantime, after the Collector concluded the inquiry of ownership of land and took a decision that the defendant nos.1 and 2 were owners of the said land by order dated 22nd June, 1995, thereafter, the said order was upheld by the Revenue Minister in Revision Application filed by the Union of India. Thereafter, the 5 present suit was filed by the Salt Department (Union of India) in this Court on 17th July, 1997. Defendant Nos.1 and 2, thereafter, took out a Notice of Motion in 1999 being Notice of Motion No.401/1999 under Order VII Rule 2 of CPC, 1908. This Notice of Motion was allowed by the learned Single Judge of this Court by order dated 17th January, 2000 by coming to the conclusion that the suit was barred by limitation since it was not filed within one year from the date of decision in appeal against the order passed by the Collector under Section 20(2) and on that ground, the suit was dismissed. The Union of India filed an appeal against the said order, however, the said appeal was also dismissed by the Division Bench of this Court on 10th July, 2000. 7. The Union of India being aggrieved by the High Court's order preferred a Special Leave Petition before the Apex Court which was allowed by the Apex Court by its order dated 19th September, 2001 and order of the learned Single Judge and of the learned Division Bench was set aside. The Apex Court observed that the issue of limitation could not be decided in a summary manner and therefore, restored the suit to the file of the High Court. The Supreme Court also allowed the department to amend the plaint within two weeks from the date of its order and granted leave to the parties to reagitate all issues. Liberty was granted to the defendants to take out a Motion regarding the maintainability of the suit on the ground of limitation and further 6 observed that if such Motion is taken out, it should be decided within a period of six months. 8. Pursuant to leave granted by the Apex Court, the Union of India filed the Chamber Summons for amendment of the plaint and the said amendment was allowed and the Court permitted the plaintiff to make additional averments in the plaint, also to delete some of the prayers and add new prayers in the plaint. 9. On 18th February, 2002, written statement was filed by defendant nos.1 and 2. Thereafter, the present Notice of Motion was taken out by defendant Nos.1 and 2 pursuant to liberty granted by the Apex Court vide its order dated 19th September, 2001. 10. In the said Notice of Motion, an order was passed by Justice Kochar in which he held that it would be appropriate to decide the preliminary question of limitation instead of multiplying the proceedings in the form of present Motions. 11. Thereafter, the matter was placed before Justice J.A. Patil. He observed that the plaintiff would be entitled to lead evidence on the point of limitation and accordingly, he permitted the parties to file affidavit in lieu of evidence and also to file affidavit of documents. 7 On 24th June, 2003, affidavit in lieu of evidence of Dr.Mukherjee for opposing the prayers in the Notice of Motion was taken on record. Affidavit of documents of defendants no.1 and 2 was filed on 12th April, 2004. Thereafter, supplementary affidavit of Dr.Mukherjee was filed on June 23, 2004. Thereafter, Dr.Mukherjee was cross-examined by the Defendants' Counsel. Thereafter, evidence of Assistant Salt Commissioner was also recorded who was also cross-examined and re-examined and the evidence on the point of limitation was closed. 12. Thereafter, during the course of hearing of the aforesaid Motions which were taken out by the defendants, an oral application was made for framing of issue of limitation by the Counsel for the plaintiff and a Notice of Motion was also filed for the following reliefs :- "a) For direction and order to frame the issue on the basis of plaint and written statement in the suit in respect of defendants' contention that the suit is barred by law of limitation. b) that the plaintiff be given an opportunity to cross-examine the defendants on the basis of affidavit of documents and affidavit in support of Notice of Motion. c) the Notice of Motion be decided on the basis of plaint without relying on the defendants' affidavit in support of documents for the purpose of deciding the issue of limitation." Justice Aguiar framed the following preliminary issue :- 8 “Whether the claim in the suit is barred by Law of Limitation provided under Section 20 of the Maharashtra Land Revenue Code, 1966, and under the Limitation Act, 1965 as alleged by the defendants." 13. The Notice of Motion taken out by the plaintiffs for the purpose of deciding the issue of limitation along with the other issues was dismissed on 28th September, 2006. Appeal filed by the plaintiffs against the said judgment and order was also dismissed on 13th December, 2006. 14. Shri Jahagirdar and Shri Subramaniam, learned Senior Counsel appearing on behalf of the defendants no.1 to 3 submitted firstly that the suit was not filed within one year from the date of the order passed by the Appellate Court as required under provisions of Section 40 sub-clause 4 of the Maharashtra Land Revenue Code, 1966 and therefore, the suit was barred by limitation. It was submitted that the Collector, Bombay Suburban District, by his judgment and order dated 22nd June, 1995 was pleased to hold that the suit property was defendants’ no.1 and 2 private property and the plaintiffs' claim of NOC was rejected. Against the said order, the revision application filed before the Hon'ble Minister of Revenue Department was rejected on 12th June, 1996. Suit challenging the said orders was filed on 10th September, 1997 and there it was alleged the period 9 of one year as contemplated under Section 20 of the Maharashtra Land Revenue Code. It was submitted that though prayer for declaration was made by the plaintiffs for declaring them as owners of the suit lands, the challenge was in essence to the legality and validity of the orders passed under Section 22 of the said Act. It was further submitted that even if the period of limitation of one year was to be calculated from the date on which the order passed by the Revenue Ministers in the Review Application was communicated, the suit still would be barred. It was submitted that the said copy was forwarded by letter dated 17th June, 1996 and it was received by the plaintiff on or before 30th June, 1996. It was further submitted that since a prayer had been made for condonation of delay itself showed that the suit was barred by limitation. It was then submitted that the provisions of Section 5 of the Limitation Act, 1963 was not applicable and available to the plaintiffs. It was further submitted that the provisions of Section 14 of the Limitation Act, 1962 also would not be applicable to the facts of the present case. It was submitted that the provisions of Section 14(2) would be applicable to a court alone and not a Tribunal or quasi-judicial Tribunal. It was then submitted that the word 'Government' which is used in Section 20 sub-clause 2 would clearly mean the 'Central Government as well as the State Government. Reliance was placed on the definition of the term Government under Section 223 in the General Clauses Act, 1998. It 10 was further submitted that since the Apex Court in its order dated 26th February, 1996 which had dismissed the Special Leave Petition filed by Union of India against the order of Division Bench of this Court, had observed that the Union of India would get the possession and the question of title be decided in appeal which was pending before the appellate Tribunal. It was submitted that in view of this, the plaintiffs were estopped from contending that the provisions of Section 20 of Maharashtra Land Revenue Code will not be applicable. 15. So far as the provisions of General Law of Limitation is concerned, it was submitted that the defendants no.1 and 2 were owners of the suit property for more than 125 years and all the records during jamin kharda as well as license register, building register clearly showed that at the relevant time, defendant nos.1 and 2 were the owners of the suit property. It was submitted that the permission was granted to the father of defendant nos.1 and 2 to purchase the property by letter dated 9th September, 1941. It was submitted that thereafter, a conveyance was executed on 17th April, 1941 conveying the property in favour of father of defendants no.1 and 2. Copy of the conveyance was forwarded to the plaintiffs for making entries in the records. Secondly, it was submitted that prior to that, the predecessor title of defendant's father also had informed the Deputy Collector of Salt Revenue about the sale dated 17th July, 1933 by which they 11 purchased the suit land and pursuant thereto the Deputy Collector of Salt Revenue, Bombay had informed by letter dated 26th September, 1933 and 18th January, 1933 that a notice of the conveyance had been taken. Thirdly, it was submitted that the license register maintained by the plaintiffs showed that the defendants and/or their predecessors were owners of the suit property since 1864. Fourthly, it was submitted that the defendants and their predecessors had claimed ownership of the land in question with the knowledge of the plaintiffs and if the plaintiffs had any objection, they should have done so within 7 years after the commencement of Limitation Act, 1963. Alternatively, it was fifthly submitted that the alternate submission was made that the question of adverse possession will arise only on the Central Government having title of ownership to the said property. It was, therefore, submitted that if the title of the government is established, then on the basis of adverse possession, the suit was barred by limitation. Sixthly, it was submitted that part of the property which was required for public purpose and compensation was paid to the defendants. Seventhly, it was submitted that part of the property was under requisition for Sion-Panvel Highway and father of the defendants no.1 and 2 claimed compensation. Compensation was awarded to the father of defendants no.1 and 2. Lastly, it was submitted that two witnesses examined by the plaintiffs have reasonably failed to show as how the suit was within time. It 12 was submitted that one of the witnesses had no knowledge of any of the contents of examination-in-chief nor about the case sought to be put up by the plaintiffs and the documents clearly established that the plaintiffs had knowledge about the ownership rights claimed by the defendants and therefore, even it was further held that the provisions of the Limitation Act, 1963 is made applicable, even then the period of 30 years had commenced from the conveyance which was executed in favour of the father of the defendants no.1 and 2 in the year 1941. 16. The learned Senior Counsel for the defendants have relied on the following judgments in support of their case :- 1. A Devalala de Shri Deus Sideswor and its affiliate Temples of Surla, Applicant vs. Bablo Dadu Gadi and others, Respondents (AIR 1977 Goa, Daman & Diu 2), 2. Kamta Prasad Singh, Appellant vs. Ram Narayan Lall, Respondent (AIR 1957 Patna 139), 3. Commissioner of Sales Tax, U.P., Lucknow, Applicant vs. M/s.Parson Tools and Plants, Kanpur, Opposite Party (AIR 1970 Allahabad 428), 4. Kashiram, Appellant vs. Santokhbai, Respondent (AIR 1958 Madhya Pradesh 91), 5. Abbas Ali Khan – Defendant – Appellant vs. Yusuf Ali Khan – Plaintiff - Respondent (AIR 1927 Lahore 186), 6. Nakul Chandra Ghose and others – Petitioners vs. Shyamapada Ghose – Opposite Party (AIR (32) 1945 Calcutta 381), 7. Katragadda Rajabapayya – Appellant vs. Devineni Basavayya and another – Respondents (AIR (29) 1942 Madras 713), 8. Lal Bihari Lall and another – Plaintiffs – Appellants v.Bani Madhava Khatri and others – Defendants – Respondents (AIR (36) 1949 Patna 293, 9. Muhammad Subhan-Ullah (Plaintiff) v. The Secretary of State for India in Council (Defendant) (Volume XXVI The Indian Law Reports) Page 382), 10. The Commissioner of Sales Tax, Uttar Pradesh, Lucknow, Appellant v. M/s.Parson Tools and Plants, Kanpur, Respondent (AIR 1975 SC 13 1039) 11.Zafar Khan and others, Appellants v. Board of Revenue, U.P. And others, Respondents (AIR 1985 SC 39). 17. Shri Rajguru, learned Counsel appearing on behalf of the plaintiffs, on the other hand, has opposed the grant of reliefs prayed by the defendants in their Notice of Motion. It was submitted that the provisions of Maharashtra Land Revenue Code, 1966 and in particular, Section 20 are not applicable for determining the ownership and title of the land belonging to the Union of India and hence, determination of the ownership rights of the land claimed by the Union of India under Section 20 of MLRC Act is void-ab-initio. It was submitted that Section 20 of MLRC Act, 1966 deals with the property vested in the State Government and the said section does not contemplate the situation where private person makes a claim on any land which by force of law vested in the Union of India as a successor in Crown. It was further submitted that during the British regime, it was the practice to grant marshy land required for salt manufacture on ownership to private parties and only limited rights for the use of land for salt manufacture were granted under leave and/or license. The learned Counsel submitted that the plaintiffs relied on regulation I of 1808 and also resolution no.4269 of 1859 dated 28.10.1859 which stated that large area of waste land were available for salt manufacture and as such agricultural land should not be permitted to be used for salt manufacture. The learned Counsel invited my attention 14 to the averments made in the plaint and submitted that for the purpose of deciding an application under Order 7 Rule 11D, averments in the plaint are to be taken into consideration and the plea taken in their written statement was only irrelevant and therefore, duty was cast on the court to consider the averments in the plaint while deciding the application under Order 7 Rule 11 without taking into consideration the averments made in the written statement. It was submitted that on the basis of documents on which reliance was placed by the plaintiffs that the suit was not barred by general law of limitation as laid down under Article 112 of the Limitation Act, 1963. It was further submitted that the plaintiffs were entitled to execute time taken by the revenue court in computing limitation i.e. From 13.11.65 till 12.6.96 in view of Section 14 of the Limitation Act. In support of the said submission, the learned Counsel had relied on following judgments :- 1) Sopan Sukhdeo Sable and others vs. Assistant Charity Commissioner and others ((2004) 3 SCC 137), 2) Popat and Kotecha Property vs. State Bank of India Staff Selection ((2005) 7 SCC Page 510), 3) Judgment of the Apex Court in Civil Appeal Nos.6508-6509 of 2001 arising out of Special Leave Petition (C) Nos.991-992 of 2001 dated 19.9.2001, 4) Division Bench Judgment of the Bombay High Court in the case of The Secretary of State for India vs. Chimanlal Jamnadas (Volume XLIV The Bombay Law Reporter 295) 5) Union of India and another vs. Mundra Salt & Chemical Industries and others ((2001) 1 SCC 222), 6) Judgment of the Bombay High Court in Soorannana Devappa Hegde bin Venkappa Hegde (Plaintiff) vs. The Secretary of State for India in Council and another (Defendants) (1900 Volume II Bombay Law Reporter 261), 15 7) Judgment of the Nagpur High Court in the case of Secretary of State – Defendant - Appellant vs. Bagmal Kisandayal – Plaintiff- Respondent (AIR 1927 Nagpur 10), 8) Abdul Waheed Khan, Appellant vs. Bhawani and others, Respondents (AIR 1966 SC 1718), 9) Vidyadhar vs. Manikrao and another ((1999) 3 SCC 573), 10)Ramnarayan Singh, Appellant vs. Kubera Sahu, Respondent (AIR 1962 Orissa 100), 11) Pritam Kaur, Appellant vs. Sher Singh, Respondent (AIR 1983 Panjab and Haryana 363), 12) P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors., ( AIR 2007 SC 1753), 13) I.S.A.L. Narayan Row and Anr. vs. Isharlal Bhagwandas and Anr. ( AIR 1965 SC 1818), 14) Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Ors. (AIR 2009 SC 103), 15) Union of India and others vs. West Coast Paper Mills Ltd. And Another ((2004) 3 SCC 458), 16) C. Natarajan v. Ashim Bai & Anr. (AIR 2008 SC 363), 17) M. Durai vs. Muthu and others ((2007) 3 SCC 114), 18) Saroop Singh vs. Banto and others ((2005) 8 SCC 330), 19) The Union of India and others vs. Muhammad Masud Muhammad Mahsin Bhaiji & Ors. ((1997) 2 Bombay C.R.314). 18. In the present case, the following issue has been framed by Order dated 15.3.2005 “Whether the claim in the suit is barred by Law of Limitation provided under Section 20 of the Maharashtra Law Revenue Code, 1966, and under the Limitation Act, 1963, as alleged by the defendants”. The said issue, therefore, is in two parts :- 1. Whether the suit is barred by the Limitation Act, 1963 and 2. Whether the claim in the suit is barred by limitation as provided under Section 20 of the MLRC Act. So far as the first part is concerned, viz. Whether the suit is barred by the Law of Limitation Act, 1963, the relevant provision in this case under 16 Article 112 reads as under :- Description of appeal Period of appeal Time from which period begins to run Any suit (except a suit before the Supreme Court in the exercise of its original jurisdiction) by or on behalf of the Central Government or any State Government, including the Government of the State of Jammu and Kashmir. Thirty years When the period of limitation would begin to run under this Act against a like suit by a private person. 19. Perusal of the aforesaid section, therefore, clearly reveals that whether a suit is filed by the State, then the starting point of limitation would begin to run under the Act against a like suit by a private person and the period of limitation prescribed is 30 years. In the present case, in the plaint, an averment is made that the period of limitation began either after an order was passed by the revenue authorities entering the name of defendants no.1 and 2 in the record of rights in December 1967 or alternatively, it has been urged that it would begin after the suit property was sold by conveyance to defendant no.3 in 1994 and in either case, therefore, the suit was not barred by Law of Limitation since it was filed within 30 years from December 1967 or if it is held that the period of limitation began from 1994, even then the suit being filed in September 17 1997 it was filed within 30 years and therefore, has not barred by the Limitation Act, 1963. The defendant nos.1 and 2 have relied on certain admitted documents in support of their contention that the plaintiff had knowledge about the assertion of the ownership by defendants no.1 and 2 from 17.7.1933 itself. In support of the said submission, defendants have