Decided on October 05,1963



N.M.MIABHOY - (1.) These two appeals arise from two decrees passed by the learned Civil JuGujarat HighCourtdge (Senior Division) Surat on 30th of April 1957 in Special Jurisdiction Suit No. 26 of 1951 and Regular Civil Suit No. 1129 of 1952 by which the learned Judge dismissed the suits. We may briefly mention the facts which gave rise to the two suits. There is no dispute that the respondent Sardar Sajjadanashin Saiyed Mahomed Bakar-el-Edrus who is the common respondent in both the appeals is the Inamdar of the Village Orma situated in the district of Surat with which village we are concerned in these two appeals. There is also no dispute that the plaintiffs or their predecessors were at all material times the cultivators of various fields in the village. Originally the plaint which was presented in Special Civil Suit No. 26 of 1951 was signed by the plaintiffs thereof and the predecessor-in-title of the plaintiff of the second suit No. 1129 of 1952. However the latter died before the presentation of the suit in the Court. Therefore the second suit was brought by the heirs of that person in the Court of the learned Civil Judge at Olpad. Subsequently as common questions of law and fact arose in both the suits the suit in Olpad Court was transferred on 29th December 1952 to the Civil Court at Surat and both the suits were tried and disposed off together. In the Special Jurisdiction Suit the plaintiffs claimed a declaration that the defendant was not the owner of the suit lands and that the plaintiffs were the occupants thereof. In the alternative the plaintiffs therein claimed that they were permanent tenants of the suit fields. In the second suit the plaintiffs claimed an injunction only directing the defendant to recover assessment only from the plaintiffs and nothing more. Briefly speaking the contention of the plaintiffs in both the suits was that they were the occupants of the suit fields and that the defendant was only an Inamdar entitled to recover from them the land revenue. They alleged that the defendant was not an alienee of the soil but that he was an alienee only of the land revenue: that their predecessors-in-title were cultivating the lands long before the Inam grant was made in favour of the predecessor of the defendant and that consequently they had full rights as occupants of the suit lands even from before the time the Inam grant was made in favour of the predecessor of the defendant. It is a common ground that in or about 1923 plaintiffs or their predecessors were paying the defendant at a flat rate of Rs. 3-8-0 per bigha. Plaintiffs alleged that in or about 1923 the defendants predecessor demanded from them or their predecessors a payment at double the rate; that for this purpose the then Inamdar came to the village and gave a Hobsons choice to the cultivators. He called upon the cultivators either to sign a Kabuliyat agreeing to make payment at the rate of Rs. 7.00 per bigha or to vacate the lands. The plaintiffs alleged that they or their predecessors submitted to the threat and coercion of the then Inamdar and executed a Kabuliyat as asked for; whereas some other cultivators of the village did not do so and vacated the lands. The plaintiffs further alleged that in or about 1940 or 1941 the lands which had been vacated by the previous cultivators were given for cultivation to some of the plaintiffs or their predecessors. They also alleged that in or about 1942 the defendant made them sign one document which was in the form of a rent-note. The plaintiffs alleged that the acts of the Inamdar in both the years 1923 and 1942 and the documents executed by them or their predecessors in those two years were vitiated by intimidation and coercion and did not create any rights in favour of the Inamdar. On these allegations the plaintiffs claimed the reliefs already set out.
(2.) The defendant resisted both the suits on a number of grounds some of them of a technical nature. In respect of some of these defences preliminary issues were raised by the trial Court and these issues were taken up for decision at first as preliminary issues. The learned Judge decided all the preliminary issues in favour of the plaintiffs except the issue of limitation. On the plea of limitation the learned Judge came to the conclusion that both the suits of the plaintiffs were barred by the law of limitation under Article 120 of the Schedule to the Indian Limitation Act. On this ground alone the learned Judge dismissed the claims of the plaintiffs. It is against this decision that the present two appeals have been filed and the only question which requires determination in the appeal is whether the two suits of the plaintiffs are barred by the law of limitation. As this issue was tried as a preliminary issue and no evidence was taken before deciding this issue the averments made in the plaint will have to be taken as correct. It is on this basis that the point of limitation appears to have been argued in the trial Court and was argued in this Court. Therefore in order to dispose off the point of limitation it is necessary to set out the averments made in the plaint on the basis of which the point of limitation has got to be decided.
(3.) In the first six paragraphs the plaintiffs alleged that they were the occupants of the suit lands and that the defendant was only an Inamdar of the land-revenue and that there was no relationship of landlord and tenant existing between the plaintiffs and the defendant. The averments which are material begin from paragraph 7 of the plaint. In paragraph 7 the plaintiffs alleged that in 192b the then Inamdar was in an indebted condition and the extent of his indebtedness was to such an extent that the Court of Wards was not willing to undertake management of his estate. The plaintiffs further alleged that therefore in order to increase the income of the estate the then Inamdar came to the village in that year armed with a gun and accompanied by armed watchman; that he put up in his bungalow at the village and called each of the cultivators separately; that the Inamdar kept two documents ready with him; and that one document was for increasing the amount of payment from Rs. 3-8-0 to Rs. 7/- per bigha and the other document was a document of surrender. The plaintiffs further alleged that when each cultivator was called in the presence of the Inamdar the Inamdar threatened each of them that if he did not execute any of the two documents he would be forcibly driven away from the lands and that thereupon he and his children would have to starve; that all the cultivators submitted to this coercion; that some of them executed a Kabuliyat and continued to cultivate the lands whereas the others surrendered them and vacated and left the village. The plaintiffs also alleged that at this time the then Inamdar had given an oral. I assurance that in case the financial position of the estate improved the old rates would be restored. It is stated that thereafter the management was assumed by the Court of Wards and that an enquiry was made by the authorities of the Court as to whether the documents of Kabuliyat had been executed by the cultivators of their free will; that at that time some non-cultivators were appointed as panchas and a show was made as if the documents were executed by the executants of their own free will and that an assurance was given at this time also that the old rates would be restored after the financial position of the estate improved. In paragraph 8 the plaintiffs alleged that the Inamdar not only continued to recover the enhanced rate after the cessation of the management but again in 1942 got a common writing executed by all the cultivators under the threat that if they did not do so they would be evicted from the lands. In paragraph 9 the plaintiffs alleged that for the aforesaid reasons the two documents executed in 1923 and 1942 were void ab initio and were without consideration and also void for non-registration. In the same paragraph the plaintiffs further alleged that inspite of the execution of the aforesaid two documents the plaintiffs continued to be the occupants of the lands and were liable to pay to the defendant only the land revenue assessable on the land payable by the defendant to the Government and that the present suit was brought by them for a declaration of this right of theirs. In paragraph 10 the plaintiffs alleged in the alternative that even if they were not the occupants of the lands they were permanent tenants thereof by reason of the fact that the tenancy was lost in antiquity and that as such permanent tenants the defendant was entitled to recover from them only the amount of land revenue assessment as rent and was not entitled to enhance the same. In paragraph 11 the plaintiffs alleged that they had a right to recover the excess payments which they had made but they did not claim the refund of the excess payments in the present suit. Then comes paragraph 12 which is material and which we have got officially translated and the translation is as follows: 12 The cause of action had arisen since the Agrahakdhari (i e. predecessor-in-title) of the defendant started recovering wrongly a heavy rate in the year 1923 A. D. and the same has continued to subsist day after day. And the same has arisen and had continued to subsist also on account of the statement lastly made in that behalf by the defendant in the application made by him claiming a false right to the Mamlatdar of Olpad for recovering the payment (of assessment) for the current year. ;

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