SALIM D. AGBOATWALA AND ORS. versus SHAMALJI ODDHAVJI THAKKAR AND ORS. on 17 September 2021

[2021] 9 S.C.R. 103

SALIM D. AGBOATWALA AND ORS.

v.

SHAMALJI ODDHAVJI THAKKAR AND ORS.

(Civil Appeal No. 5641 of 2021)

SEPTEMBER 17, 2021

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Code of Civil Procedure, 1908 – Or.VII, r.11(d) – MaharashtraTenancy and Agricultural Lands Act, 1948 – ss.32G, 32M, 85 and85-A – The plaintiffs’ case that one ‘H’ died in the year 1946 andthereafter a suit was filed by his heirs in the year 1947 – In the saidsuit, the High Court appointed a Receiver and he took over thepossession and management of the properties – Certain sales throughAgricultural Lands Tribunal and mutation in the revenue recordswere effected thereafter without the knowledge and behind the backof the heirs – Thereafter, another suit was filed by the personsclaiming to be legal representatives and successors in title of one‘H’ in the year 1987 for setting aside an order passed by theAgricultural Lands Tribunal in a tenancy case u/s. 32G of theMaharashtra Tenancy and Agricultural Lands Act, 1948 and forsetting aside a sale certificate issued u/s.32M of the 1948 Act – Thedefendant took the defence that the plaint was liable to be rejectedu/Or.VII, r.11(d) CPC as (a) that the suit filed in the year 1987challenging the action of the competent authorities under the Actcarried 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 jurisdictionof civil Court – Accordingly, the civil Court rejected the plaint onboth the points raised by the defendant – The Regular First Appealby the plaintiffs was dismissed by the High Court – Before theSupreme Court, it was contended by the appellants/plaintiffs thatonly after making inspection of the records in connection with thesuit land available in the office of defendant No.3 (Court Receiver)that they came across the correspondence and documents relatingto the transactions and that the proceedings before the AgriculturalLands 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 Appellateauthority of the 1948 Act – Held: In the instant case, the plaintiffs

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Aassert in no uncertain terms that notices were never ordered to themnor served on them – Therefore, the answer to the issue regardinglimitation, will depend upon the evidence with regard to the issuanceand service of notice and the knowledge of the plaintiffs – The trialCourt as well as the High Court were not right in rejecting the plainton the ground of limitation, especially in the facts and circumstancesBof this case – The civil Court as well as the High Court refused tofollow the procedure prescribed by s.85-A of the 1948 Act, on theshort ground that the same could be invoked only in cases wherethe issues covered by the Act have not already been settled, decidedor dealt with by an authority competent under the Act to do so –CCollusion and fraud are the main planks on which the plaintiffshave built up their case – The question whether the order of theALT and the sale certificate issued thereafter are the product offraud and collusion, cannot be determined by the Appellate orRevisional 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 testedDbefore the trial Court or the High Court – Therefore, the civil Court’sjurisdiction cannot be said to have been ousted completely – Hence,the trial Court as well as the High Court committed error in rejectingthe plaint u/Or.VII, r.11(d) – The judgment and decree of the TrialCourt as well as the High Court are set aside and the suit is restoredEto file.

Allowing the appeal, the Court

Conclusion

HELD: 1. There was rejection of plaint on the ground oflimitation. It is needless to emphasis that limitation is a mixedquestion of fact and law. It is the case of the appellants/plaintiffsFthat only after making inspection of the records in connectionwith the suit land available in the office of defendant No.3 (CourtReceiver) that they came across the correspondence anddocuments relating to the transactions and that the proceedingsbefore the ALT were collusive, fraudulent and null and void. TheGappellants/plaintiffs have even questioned the authority of theCourt 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 theplaintiffs succeed in establishing the above averments, the issueHof limitation cannot be put against the plaintiffs. Generally a party, who never had any notice of a particular proceeding before a quasi-judicial authority, is entitled to approach the Court upon gainingknowledge of the proceedings. Limitation cannot be put againstsuch a party. [Para 11][111-D-E]

3. This Court is not dealing here with a case where noticeswere ordered to be issued, but were not or could not, be servedon necessary and proper parties. It is a case where the plaintiffsassert in no uncertain terms that notices were never ordered tothem nor served on them. Therefore, the answer to the issueregarding limitation, will depend upon the evidence with regardto the issuance and service of notice and the knowledge of theplaintiffs. Hence, the Trial Court as well as the High Court werenot right in rejecting the plaint on the ground of limitation,especially in the facts and circumstances of this case. [Para12][111-E-F]

4. Though Section 85(2) of the Maharashtra Tenancy andAgricultural Lands Act, 1948 mandates that no order of theMamlatdar, the Tribunal, the Collector or the State Governmentpassed under the Act shall be questioned in any Civil or CriminalCourt, the bar contained therein stands diluted to some extentunder Section 85-A. [Para 21][114-G-H]

5. Section 85A inserted by Bombay Act 13 of 1956prescribes a two stage procedure for the Civil Court to follow,whenever a suit is instituted, despite the bar contained in Section85. In the first stage, the Civil Court should stay the suit andrefer the issues to the competent authority under the Act fordetermination. In the second stage, the Civil Court should disposeof the suit in accordance with the procedure applicable thereto,after receipt of the decision of the competent authority, to whomthe issues were referred for a decision under the Act. [Para22][115-A-B]

6. If the bar under Section 85(2) was absolute, the CivilCourt would have no option except to dismiss the suit. If the barof jurisdiction is absolute, the question of the Civil Court stayingfurther proceedings in the suit, referring the issues for theadjudication of the competent authority under the Act anddisposing of the suit after receipt of a decision from the competentauthority, would not arise. [Para 23][115-B-C]

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A7. The City Civil Court as well as the High Court refusedto follow the procedure prescribed by Section 85-A of the Act, onthe short ground that the same could be invoked only in caseswhere the issues covered by the Act have not already beensettled, decided or dealt with by an authority competent underthe Act to do so. The Collector is the appellate authority underBSection 74. Under Section 76-A, the Collector even has suo motupower of revision, even in cases where no appeal has been filed.Section 79 of the Act prescribes a period of 60 days as thelimitation for filing an appeal or revision. Therefore, it is contendedby the respondents that a party who suffered an order from theCALT and who chose not to challenge the same by way of an appealor revision for a period of more than two decades, cannotresurrect his right to avail statutory remedies, first by filing asuit and then seeking recourse to Section 85-A. [Para 24] [115-D-G]

D8. But the contention of the respondents overlooks animportant facet of the case set up by the plaintiffs. According tothe plaintiffs, the Estate was in the administration of the CourtReceiver and that in collusion between the Court Receiver andthe Revenue authorities, the sale as well as mutation took placewithout any notice to any of the interested parties. Collusion andEfraud are the main planks on which the plaintiffs have built uptheir case. The question whether the order of the ALT and thesale certificate issued thereafter are the product of fraud andcollusion, cannot be determined by the appellate or revisionalauthority under the Act. In any case it is contended by theFappellants that by virtue of Section 88-B(1)(d) of the Act, none ofthe provisions of the Act, except a few, are applicable, “to landstaken under management temporarily by the Civil, Revenue orCriminal Courts by themselves, or through receivers appointed bythem, till the decision of the title of the rightful owners”. The veracityof such argument has not been tested before the Trial Court orGthe High Court. This Court does not know whether the exemptionunder 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.

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Therefore, the Civil Court’s jurisdiction cannot be said to havebeen ousted completely. The Civil Court was obliged to see atleast whether the appointment of a Receiver for the administrationof the Estate of a deceased person would actually fall within themandate of Clause(d) of Sub-section(1) of Section 88-B. [Para25][115-H; 116-A-E]

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P. V. Guru Raj Reddy v. P. Neeradha Reddy and Others

(2015) 8 SCC 331 : [2015] 1 SCR 1108; Chhotanbenv. 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 NirmanSahakari Samiti Limited & Anr. (2015) 7 SCC 601 :[2015] 5 SCR 365 – referred to.

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Murlidhar Bapuji Value v. Yallappa Lalu Chaugule(1994) SCC Online Bom 72; Parvathathammal v.Sivasankara Bhattar and Others (1951) SCC OnlineMad 23 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No.5641 of2021.

From the Judgment and Order dated 26.02.2014 of the High Courtof Judicature at Bombay in First Appeal No.948 of 2012.

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Kevic Setalvad, Sr. Adv., Nimish Kothare, Nikhil Mutha, Dr. JosephAristotle S., Advs. for the Appellants.

Shekhar Napadhde, Sr Adv., Mahesh Agarwal, Ankur Saigal,Hemang Reythala, Nishant Rao, Rajeev Gupta, E. C. Agrawala,Aniruddha Joshi, Ms. Charu Ambwani, Advs. for the Respondents.

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AThe Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

1. Leave was granted on 07.09.2021.

2. Their plaint having been rejected by the trial court under OrderBVII Rule 11 (d) of the Code of Civil Procedure, 1908, and the said rejectionhaving been confirmed by the High Court in a first appeal, the plaintiffshave come up with the above appeal.

3. We have heard Mr. Kevic Setalvad, learned senior advocateappearing for the appellants and Mr. Shekhar Naphade, learned SeniorCAdvocate and Mr. Aniruddha Joshi, learned Advocate appearing for thecontesting respondents.

4. A group of 13 persons, claiming to be the legal representativesand successors in title to the estate of one Haji Ali Mohammed HajeeKassam Agboatwala, filed a civil suit in S.C. Suit No.2343 of 1987 onDthe file of the City Civil Court at Bombay. The reliefs prayed for in thissuit are as follows:- “The Plaintiffs, therefore, pray that:

(a) It be declared that the judgment and order dated 28[th]November 1963 passed by A.L.T. Borivali, BombayESuburban District, in Tenancy Case No.32-G/65-63Dahisar, Part of Exhibit ‘F’ hereto, holding DefendantNo. 1 to be ‘deemed Purchaser’ of the suit land bearingSurvey No.216, Hissa No.4-A bearing C.t.S. No.1879,of village Dahisar Taluka Borivali, Bombay suburbanDistrict is null and void, inoperative in law and notFbinding upon the plaintiffs; (b)It be declared that Certificate issued by A.L.T. Borivaly,under Section 32-M of the Tenancy Act, part of Exhibit‘F’ to this Plaint, declaring Defendant No.1 as ‘deemedpurchaser’ of the suit land bearing Survey No.216,GHissa No.4-A, bearing C.T.S No.1879 of village DahisarTaluka Borivali, Bombay Suburban District is null andvoid inoperative in law and not binding upon thePlaintiffs; H

(c) It be further declared that Defendant Nos. 1 and 2 andperson claiming through and under the said Defendantsare trespassers on the suit land bearing Survey No.216,Hissa No.4-A, bearing C.T.S No.1879 of Village DahisarTaluka Borivali, Bombay suburban District; (d)The Defendant Nos. 1 and 2 be jointly and severallyordered and decreed to hand over to the Plaintiffs and/or to Defendant No.3 the Court Receiver, Vacant andpeaceful possession o the Suit land Viz., Survey No.216,Hissa No.4-A bearing C.T.S No.1879 of village Dahisar,Taluka Borivali, Bombay suburban district; (e)The Defendant Nos. 1 and 2 be ordered and decreed topay to the Plaintiffs and/or Defendant No.3, the CourtReceiver, such mesne profits as may be determined uponinquiry under Order 20 Rule 12 of the Civil ProcedureCode from the date of the suit till the date of delivery ofpossession of the suit land, bearing Survey No.216 HissaNo.4-A, bearing C.T.S. No.1879 of Dahisar, VillageTaluka, Borivali.

(f) That pending the hearing and disposal of the suit, CourtReceiver, High Court, Bombay or some other fit andproper person be appointed as the Receiver of the suitland including the structure standing thereon underOrder 40 Rule 1 of the Civil Procedure Code with allpowers under the said Rule and he be directed to takepossession of the suit land being Survey No.216, HissaNo.4-A, bearing C.T.S.No.1879 of Dahisar, VillageTaluka, Borivali.

(g) That pending the hearing and disposal of the suit, theDefendant Nos. 1 and 2 their servants, agents,contractors, builders and/or developers and all personsclaiming through or under the said Defendants berestrained by an order and induction of this HonourableCourt from disposing of alienating, parting withpossession of, encumbering by creating third partyinterest in any manner whatsoever, and/or carrying onconstruction work of any nature whatsoever upon the A

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110SUPREME COURT REPORTS

suit land or part thereof or any structure or part of thestructure standing on the suit land i.e. Survey No.216,Hissas No.4-A, bearing C.T.S. No.1879 of villageDahisar, Taluka Borivali in Bombay Suburban District.”

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5. In brief, the claim of the plaintiffs in the aforesaid suit was thatBthe person, to whom they claimed to have succeeded, died in the year1946, leading to some of his heirs filing a suit for the administration ofthe estate left behind by him. The said suit being suit No.3415 of 1947was filed on the original side of the High Court of Bombay. By a Judgmentdated 30.06.1950, the High Court appointed a Receiver and he tookover possession and management of the properties. According to theCplaintiffs, certain sales through Agricultural Lands Tribunal and mutationin the revenue records were effected thereafter without the knowledgeand behind the back of the heirs and legal representatives and that theplaintiffs came to know about the same, when they made an inspectionof the records available with the Court Receiver. Therefore, the suitDwas filed primarily for setting aside an order passed by the AgriculturalLands Tribunal (for short “ALT”) in a tenancy case under Section 32Gof the Maharashtra Tenancy and Agricultural Lands Act, 1948 (for short“the Act”) and for setting aside a sale certificate issued under Section32M of the Act.

E6. Since the order of the ALT passed under Section 32G of theAct was dated 28.11.1963 and the sale certificate issued under Section32M was dated 23.07.1954, but the suit being S.C. suit No.2343 of 1987was filed in March-1987, the second defendant in the suit which is aCooperative Society, took out a notice of motion for the rejection of theplaint under Order VII Rule 11(d) CPC. It is relevant to note that thisFnotice of motion was taken out, by the second defendant, only in theyear 2003, that is after 16 years of the institution of the suit.

7. The rejection of plaint was sought primarily on two grounds,namely, (a) that the suit filed in the year 1987 challenging the action ofthe competent authorities under the Act carried out way back in 1963Gand 1964 was hopelessly barred by limitation; and (b) that in any caseSection 85 of the Act bars the jurisdiction of Civil Court.

8. The City Civil Court Bombay, by an Order dated 16.04.2012allowed the notice of motion and rejected the plaint on both the groundsraised by the second defendant.H

9. Aggrieved by the said order, the plaintiffs filed a regular appealin First appeal No. 948 of 2012. The appeal was dismissed by the HighCourt of Judicature at Bombay by a Judgment and decree date26.02.2014. It is against the said judgment that the original plaintiffs 3, 4,5, 6, 8, 9, 11, 12 and 13 have come up with the above appeal.

10. Insofar as the rejection of plaint on the ground of limitation isconcerned, it is needless to emphasis that limitation is a mixed questionof fact and law. It is the case of the appellants/plaintiffs that only aftermaking inspection of the records in connection with the suit land availablein the office of defendant No.3 (Court Receiver) that they came acrossthe correspondence and documents relating to the transactions and thatthe proceedings before the ALT were collusive, fraudulent and null andvoid. The appellants/plaintiffs have even questioned the authority of theCourt Receiver to represent them in the tenancy proceedings.

11. The above averments may or may not be true. But if theplaintiffs succeed in establishing the above averments, the issue oflimitation cannot be put against the plaintiffs. Generally a party, whonever had any notice of a particular proceeding before a quasi-judicialauthority, is entitled to approach the Court upon gaining knowledge ofthe proceedings. Limitation cannot be put against such a party.

12. We are not dealing here with a case where notices wereordered to be issued, but were not or could not, be served on necessaryand proper parties. We are dealing with a case where the plaintiffs assertin no uncertain terms that notices were never ordered to them nor servedon them. Therefore, the answer to the issue regarding limitation, willdepend upon the evidence with regard to the issuance and service ofnotice and the knowledge of the plaintiffs. Hence, the Trial Court aswell as the High Court were not right in rejecting the plaint on the groundof limitation, especially in the facts and circumstances of this case.

13. As observed by this Court in P.V. Guru Raj Reddy vs. P.Neeradha Reddy And Others[1], the rejection of plaint under Order VIIRule 11 is a drastic power conferred on the Court to terminate a civilaction at the threshold. Therefore, the conditions precedent to the exerciseof the power are stringent and it is especially so when rejection of plaintis sought on the ground of limitation. When a plaintiff claims that hegained knowledge of the essential facts giving rise to the cause of action A

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Aonly at a particular point of time, the same has to be accepted at thestage of considering the application under Order VII Rule 11.

14. Again as pointed out by a three member bench of this Court inChhotanben vs. Kiritbhai Jalkrushnabhai Thakkar[2], the plea regardingthe date on which the plaintiffs gained knowledge of the essential facts,Bis crucial for deciding the question whether the suit is barred by limitationor not. It becomes a triable issue and hence the suit cannot be thrownout at the threshold.

15. Referring to a few averments contained in the plaint, it iscontended by the learned counsel for the respondents that the appellantsChad constructive notice of the proceedings under Section 32-G and thesale certificate issued under Section 32-M. In support of such a plea, thelearned counsel relies upon the following decisions, Ram Niwas (Dead)vs. Bano (Smt.) & Ors.[3]; Rajasthan Housing Board vs. New PinkCity Nirman Sahakari Samiti Limited & Anr.[4]; Murlidhar BapujiValve vs. Yallappa Lalu Chaugule[5]; Parvathathammal vs.DSivasankara Bhattar And Others.[6].

16. But a defendant in a suit cannot pick up a few sentences hereand there from the plaint and contend that the plaintiffs had constructivenotice of the proceedings and that therefore limitation started runningfrom the date of constructive notice. In fact, the plea of constructiveEnotice is raised by the respondents, after asserting positively that theplaintiffs had real knowledge as well as actual notice of the proceedings.In any case, the plea of constructive notice appears to be a subsequentinvention.

17. The decision in Ram Niwas (supra) which revolved aroundFExplanation II under Section 3 of the Transfer of Property Act, 1882,cannot go to the rescue of the respondents. Section 3 of the Transfer ofProperty Act, 1882, provides that a person is said to have notice of afact, (i) either when he actually knows that fact; or (ii) when, but forwillful abstention from an enquiry or search which he ought to haveGmade, or gross negligence, he would have known it. The relevant part ofSection 3 together with Explanation II thereunder reads as follows:

2 (2018)6 SCC 4223 (2000) 6 SCC 6854 (2015) 7 SCC 6015 (1994) SCC Online Bom 72H6 1951 SCC Online Mad 23

SALIM D. AGBOATWALA v. SHAMALJI ODDHAVJITHAKKAR [V. RAMASUBRAMANIAN, J.]

“a person is said to have notice” of a fact when he actuallyknows that fact, or when, but for wilful abstention from anenquiry or search which he ought to have made, or grossnegligence, he would have known it Explanation II.—Any person acquiring any immovableproperty or any share or interest in any such property shallbe deemed to have notice of the title, if any, of any personwho is for the time being in actual possession thereof.”

18. The 2 ingredients of the relevant part of Section 3 providingas to when “a person is said to have notice”, are matters of fact to beestablished through evidence. The respondents in this case cannot evenfall back upon Explanation II which holds that a person acquiring animmovable property will be deemed to have notice of the title of a personin actual possession thereof. In this case, it was the Court Receiver whowas in possession and management of the entire Estate at the time ofthe impugned proceedings and hence Explanation II cannot be used bythe defendants.

19. The decision in Rajasthan Housing Board (supra) alsoreiterates the two ingredients of Section 3 of the Transfer of PropertyAct, 1882, and hence the same cannot be raised in an application underOrder VII Rule 11. It should be pointed out at this stage that Section 32(G) (1) of the Act contemplates a public notice in the prescribed form tobe published in each village. It is not the case of respondents that theplaintiffs had real or constructive notice of the proceedings by virtue ofsuch a public notice. It is not even known whether a public notice wasever published. Therefore, the plea of constructive notice raised with aview to sustain the plea of limitation cannot be accepted at the stage ofdealing with an application for rejection of plaint.

20. Insofar as the bar of the jurisdiction under Section 85 isconcerned, the Act contains a very strange provision, in section 85-A,the like of which is not found in many other statutes which containprovisions barring the jurisdiction of Civil Courts. It may be useful toextract Section 85 and 85A of the Act as follows:

“85. Bar of jurisdiction

(1) No Civil Court shall have jurisdiction to settle, decideor deal with any question [(including a question, whether aperson is or was at any time in the past a tenant and whether AB

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any such tenant is or should be deemed to have purchasedfrom his landlord the land held by him)] which is by or underthis Act required to be settled, decided or dealt with by theMamlatdar or Tribunal, a Manager, the Collector or the[Maharashtra Revenue Tribunal] in appeal or revision or the[Maharashtra Revenue Tribunal] in appeal or revision or the[State] Government in exercise of their powers of control.

(2) No order of the Mamlatdar, the Tribunal, theCollector or the [Maharashtra Revenue Tribunal] or the[State] Government made under this Act shall be questionedin any Civil or Criminal Court.

Explanation.–– For the purposes of this section a CivilCourt shall include a Mamlatdar’s Court constituted underthe Mamlatdar’s Courts Act, 1906.

85A. Suits involving issues required to be decided under thisAct

(1) If any suit instituted in any Civil Court involves anyissues which are required to be settled, decided or dealt withby any authority competent to settle, decide or deal with suchissues under this Act (hereinafter referred to as the “competentauthority”), the Civil Court shall stay the suit and refer suchissues to such competent authority for determination.

(2) On receipt of such reference from the Civil Court,the competent authority shall deal with and decide such issuesin accordance with the provisions of this Act and shallcommunicate its decision to the Civil Court and such Courtshall thereupon dispose of the suit in accordance with theprocedure applicable thereto.

Explanation.–– For the purpose of this section a Civil Courtshall include a Mamlatdar’s Court constituted under theMamlatdar’s Courts Act, 1906.”

21. Though Section 85(2) mandates that no order of the Mamlatdar,the Tribunal, the Collector or the State Government passed under theAct shall be questioned in any Civil or Criminal Court, the bar containedtherein stands diluted to some extent under Section 85-A.

22. Section 85A inserted by Bombay Act 13 of 1956 prescribes atwo stage procedure for the Civil Court to follow, whenever a suit isinstituted, despite the bar contained in Section 85. In the first stage, theCivil Court should stay the suit and refer the issues to the competentauthority under the Act for determination. In the second stage, the CivilCourt should dispose of the suit in accordance with the procedureapplicable thereto, after receipt of the decision of the competent authority,to whom the issues were referred for a decision under the Act.

23. If the bar under Section 85(2) was absolute, the Civil Courtwould have no option except to dismiss the suit. If the bar of jurisdictionis absolute, the question of the Civil Court staying further proceedings inthe suit, referring the issues for the adjudication of the competent authorityunder the Act and disposing of the suit after receipt of a decision fromthe competent authority, would not arise.

24. The City Civil Court as well as the High Court refused tofollow the procedure prescribed by Section 85-A of the Act, on the shortground that the same could be invoked only in cases where the issuescovered by the Act have not already been settled, decided or dealt withby an authority competent under the Act to do so. Supporting the viewtaken by the Trial Court and the High Court, it is contended by Mr.Aniruddha Joshi, learned counsel for some of the contesting respondentsthat as against the orders passed under Section 32-G and 32-M, analternative remedy of appeal is provided under Clauses (mb) and (n) ofSub-section (1) of Section 74 of the Act. The Collector is the appellateauthority under Section 74. Under Section 76-A, the Collector even hassuo motu power of revision, even in cases where no appeal has beenfiled. Section 79 of the Act prescribes a period of 60 days as the limitationfor filing an appeal or revision. Therefore, it is contended by Mr. AniruddhaJoshi, learned counsel that a party who suffered an order from the ALTand who chose not to challenge the same by way of an appeal or revisionfor a period of more than two decades, cannot resurrect his right to availstatutory remedies, first by filing a suit and then seeking recourse toSection 85-A. Reliance is placed in this regard by the learned counselfor the respondent, on the decision of the Bombay High Court in VithobaRama Randive vs. Dhairyasinhrao Bhayasaheb Ghatge and Ors.[7]

25. But the above contention of Shri Joshi overlooks an importantfacet of the case set up by the plaintiffs. According to the plaintiffs, the7 AIR 1972 Bombay 122

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AEstate was in the administration of the Court Receiver and that in collusionbetween the Court Receiver and the Revenue authorities, the sale aswell as mutation took place without any notice to any of the interestedparties. Collusion and fraud are the main planks on which the plaintiffshave built up their case. The question whether the order of the ALT andthe sale certificate issued thereafter are the product of fraud and collusion,Bcannot be determined by the appellate or revisional authority under theAct. In any case it is contended by the learned counsel for the appellantsthat by virtue of Section 88-B(1)(d) of the Act, none of the provisions ofthe Act, except a few, are applicable, “to lands taken undermanagement temporarily by the Civil, Revenue or Criminal CourtsCby themselves, or through receivers appointed by them, till thedecision of the title of the rightful owners”. The veracity of suchargument has not been tested before the Trial Court or the High Court.We do not know whether the exemption under Section 88-B was raisedat all by the appellants/plaintiffs. But it is a legal issue which goes to theroot of the matter. Therefore, the Civil Court’s jurisdiction cannot beDsaid to have been ousted completely. The Civil Court was obliged to seeat least whether the appointment of a Receiver for the administration ofthe Estate of a deceased person would actually fall within the mandateof Clause(d) of Sub-section(1) of Section 88-B.

26. Therefore, we are of the considered view that the Trial CourtEas well as the High Court were clearly in error in rejecting the plaintunder Order VII Rule 11(d). Hence, the appeal is allowed, the judgmentand decree of the Trial Court as well as the High Court are set aside andthe suit is restored to file. There will be no order as to costs.

FAnkit Gyan

Appeal allowed.

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