Mohd. Murtiza Khan vs State of M.P. and Others

K. Subba Rao, J.—The appellant, Mohd. Murtiza Khan, is the son of Mohd. Ahmad Khan. In respect of 108.51 acres of lands situate in village Chandpur Tahsil Gairatganj, in the State of Madhya Pradesh, pattas were issued in favour of the appellant in 1944 and 1947. In September 1951 pursuant to a settlement alleged to have been entered into between the appellant's father, Mohd. Ahmad Khan, and respondents 2 to 8, the Collector of Raisen cancelled the pattas of the appellant and the said lands were put in the possession of respondents 2 to 8. The appeal filed by the appellant to the Revenue Commissioner was dismissed on March 28, 1952. The appellant became major on March 15, 1953. On April 22, 1954, he filed Suit No. 21 of 1954 in the Court of the Subordinate Judge, Begamganj, for a declaration of title in his favour in respect of the said property, for cancellation of the Pattas issued by the Collector on October 22, 1951, in favour of the respondents and for possession thereof. It was alleged in the plaint, inter alia, that the alleged compromise between the appellant's father and the respondents was brought about by coersion and that the order cancelling the Pattas was illegal. The contesting respondents alleged that they were the tenants of the said lands before the alleged Pattas were issued in favour of the appellant by a fraud practised by his father, that the subsequent settlement between appellant's father and the respondents was bona fide one, and that the order of the Collector setting aside the previous order issuing Pattas in favour of the appellant was valid.

On the said pleadings as many as 12 issues were framed. The first seven issues related to limitation, court-fee and other technical grounds. Issues 8 to 12 related to merits.

The trial Court by its judgment dated April 12, 1958 answered issues 1 to 7 in favour of the appellant, but answered the remaining issues against him. In the result it dismissed the appellant's suit.

On appeal, the learned District Judge, Bhopal, held that the appellant's father was not guilty of fraud in obtaining the Pattas in the name of the appellant, and that the order of the Collector cancelling the previous Pattas was illegal. On the said view, he decreed the suit in favour of the appellant. It does not appear from the judgment of the District Judge that any argument was made by the respondents before him on the question of limitation.

On a further appeal, the High Court of Madhya Pradesh, Jabalpur, set aside the decree of the District Judge on the ground that the suit was barred by limitation under Article 14 of the Limitation Act. Hence the appeal. Learned Counsel for the appellant contends that the Article of the Limitation Act appropriate to the suit is Article 142 and not Article 14 thereof. Elaborating this contention it is argued that the Collector had no jurisdiction to review the order issuing Pattas in favour of the appellant and that, therefore, the said order could be ignored, with the result that the plaintiff-appellant, on the basis of his title, would be entitled to a decree for possession, as the suit was filed within three years from the date he attained majority.

Article 142 of the Limitation Act prescribes a period of limitation of 12 years for a suit for possession of immovable property when the plaintiff has been dispossessed from the date of dispossession. The appellant filed the suit on the basis of his title for possession alleging that he was dispossessed. To such a suit Article 142 of the Limitation Act applies.

But it is said that in view of the order of the Collector setting aside the previous order issuing Pattas in favour of the Appellant, Article 14 of the Limitation Act is attracted. Article 14 of the said Act reads:

Description of suit

Period of limitation

Time from which period begins to run

To set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for.

One year

The date of the act or order

If this Article applies, the suit is admittedly barred. The opening words of Article 14 indicate that unless it is necessary to set aside an order before a further relief can be obtained, this Article has no application. If an order is without jurisdiction, it need not be set aside. The question, therefore, is whether the order of the Collector cancelling the Pattas issued in favour of the appellant was an order made without jurisdiction.

On September 29, 1951, the Collector after receiving the report from the Tahsildar, cancelled the previous Pattas issued in favour of the appellant and directed allotment of the same to the respondents. The revision filed by the appellant to the Revenue Commissioner was dismissed on March 28, 1952. Ex-facie there is nothing on the record to show that the Collector in cancelling the previous order took the permission of the Government. We proceed, there-fore, on the assumption that the Collector set aside the previous order without the permission of the Government.

The only section that has been brought to our notice which empowers the Collector to review his previous order is section 34 of the Bhopal State Land Revenue Act, 1932 (Act IV of 1932), hereinafter called the Act. The relevant part of that section reads:

Every revenue officer may, either on his own motion or on the application of any party interested, review any order passed by himself and pass such order in reference thereto as he thinks fit:

Provided that-

(iii) an order passed by his predecessor shall not be reviewed by the.. Nazim without the previous permission of the Government..

It is common case that Nazim is the Collector of the District. To invoke this section two conditions, relevant to the present case, have to be fulfilled, namely, (i) the grant of Patta under the Act was an order issued under the Act; and (ii) the successor of that Nazim can set aside that order only with the permission of the Government. Assuming without deciding that the grant of the Pattas was an order made under the Act the cancellation of those Pattas by the successor was made without the previous permission of the Government. If so, it is manifest that the subsequent order was without jurisdiction and can be ignored.

But the learned counsel contends that this Court may presume u/s 114 of the Indian Evidence Act that the said judicial and official act had been regularly performed, that is to say it was made with the previous permission granted by the Government. Under that section, a Court is not bound to presume such a permission, but it is left to its discretion to make or not to make such a presumption according to the circumstances of the case. The earlier order granting Pattas in favour of the appellant was made on September 29, 1951. The order ex-facie does not indicate that the requisite permission was obtained from the Government. Ordinarily if such a previous permission had been obtained it would have been mentioned in the order. In the written statement in the suit, except for a bare averment that the suit was beyond the period of limitation, it is not stated that it was barred under Article 14 of the Limitation Act. It was not contended in either of the first two Courts that the suit was barred under that Article. The High Court for the first time permitted that point to be raised. If this contention had been raised earlier, the appellant would have been in a position to establish that no such permission was taken from the Government. That apart, this is not an old transaction. The said order was made in 1951 and the suit was filed in 1954. The respondents could have easily established by summoning the relevant records that such a permission was in fact obtained. Moreover, the High Court did not draw any such presumption. We do not think that, in the circumstances of the case when the order is of a recent origin and when it does not disclose any recital of such a previous permission we are justified in drawing a presumption in favour of the respondents. If so, it follows that the order, having been made in non-compliance with the necessary conditions laid down in section 34 of the Act, is void and, therefore, need not be set aside.

The High Court also held that the Collector in the circumstances of the case could recall his previous order. We do not see how it could be done except in exercise of power conferred under the relevant sections.

Learned counsel for the respondents has not been able to bring to our notice any such power other than that found in section 34 of the Act. As we have held that the order made u/s 34 of the Act was void, the said order cannot be sustained under any other provision.

In the result, the order of the High Court is set aside and the matter is remanded to that Court for disposal in accordance with law. Costs will abide the result.