SALIM D. AGBOATWALA AND ORS. versus SHAMALJI ODDHAVJI THAKKAR AND ORS.

Citation: [2021] 9 S.C.R. 103 · Decided: 17-09-2021 · Supreme Court of India · Bench: HEMANT GUPTA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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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) – Maharashtra
Tenancy and Agricultural Lands Act, 1948 – ss.32G, 32M, 85 and
85-A – The plaintiffs’ case that one ‘H’ died in the year 1946 and
thereafter a suit was filed by his heirs in the year 1947 – In the said
suit, the High Court appointed a Receiver and he took over the
possession and management of the properties – Certain sales through
Agricultural Lands Tribunal and mutation in the revenue records
were effected thereafter without the knowledge and behind the back
of the heirs – Thereafter, another suit was filed by the persons
claiming to be legal representatives and successors in title of one
‘H’ in the year 1987 for setting aside an order passed by the
Agricultural Lands Tribunal in a tenancy case u/s. 32G of the
Maharashtra Tenancy and Agricultural Lands Act, 1948 and for
setting aside a sale certificate issued u/s.32M of the 1948 Act – The
defendant took the defence that the plaint was liable to be rejected
u/Or.VII, r.11(d) CPC as (a) that the suit filed in the year 1987
challenging the action of the competent authorities under the Act
carried 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 jurisdiction
of civil Court – Accordingly, the civil Court rejected the plaint on
both the points raised by the defendant – The Regular First Appeal
by the plaintiffs was dismissed by the High Court – Before the
Supreme Court, it was contended by the appellants/plaintiffs that
only after making inspection of the records in connection with the
suit land available in the office of defendant No.3 (Court Receiver)
that they came across the correspondence and documents relating
to the transactions and that the proceedings before the Agricultural
Lands 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 Appellate
authority of the 1948 Act – Held: In the instant case, the plaintiffs
[2021] 9 S.C.R. 103
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SUPREME COURT REPORTS
[2021] 9 S.C.R.
assert in no uncertain terms that notices were never ordered to them
nor served on them – Therefore, the answer to the issue regarding
limitation, will depend upon the evidence with regard to the issuance
and service of notice and the knowledge of the plaintiffs – The trial
Court as well as the High Court were not right in rejecting the plaint
on the ground of limitation, especially in the facts and circumstances
of this case – The civil Court as well as the High Court refused to
follow the procedure prescribed by s.85-A of the 1948 Act, on the
short ground that the same could be invoked only in cases where
the issues covered by the Act have not already been settled, decided
or dealt with by an authority competent under the Act to do so –
Collusion and fraud are the main planks on which the plaintiffs
have built up their case – The question whether the order of the
ALT and the sale certificate issued thereafter are the product of
fraud and collusion, cannot be determined by the Appellate or
Revisional 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 tested
before the trial Court or the High Court – Therefore, the civil Court’s
jurisdiction cannot be said to have been ousted completely – Hence,
the trial Court as well as the High Court committed error in rejecting
the plaint u/Or.VII, r.11(d) – The judgment and decree of the Trial
Court as well as the High Court are set aside and the suit is restored
to file.
Allowing the appeal, the Court
HELD: 1. There was rejection of plaint on the ground of
limitation. It is needless to emphasis that limitation is a mixed
question of fact and law. It is the case of the appellants/plaintiffs
that only after making inspection of the records in connection
with the suit land available in the office of defendant No.3 (Court
Receiver) that they came across the correspondence and
documents relating to the transactions and that the proceedings
before the ALT were collusive, fraudulent and null and void. The
appellants/plaintiffs have even questioned the authority of the
Court Receiver to represent them in the tenancy proceedings.
[Para 10][111-B-C]
2. The a

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