S.K.MAL LODHA, J. - (1.) DEFENDANT No. 1, who is petitioner has filed this revision under s 115 of the Code of Civil Procedure, against the order dated July 19 1978 passed by the District Judge, Balotra, by which he decided issue No. 18 relating to limitation and held that the suit of the plaintiff -non -petitioners No. 1 to 6 is within limitation under Section 79(2)(b) of the Rajasthan Panchayat Act (No. XXI of 1953) (for short 'the Act' here in after).
(2.) THE plaintiff -non -petitioners No. 1 to 6 instituted a suit for declaration, injunction, possession and mense profits in their capacity as trustees of the Oswal Community of Jasol. It was instituted on October 12, 1976. The petitioner and non -petitioners No. 7 to 12 were defendants in the suit. There is a piece of land measuring about 737 7/9 Sq. Yds. within the Panchayat boundary of village Jasol. It is alleged that this land belongs to the Oswal Community. Originally, the aforesaid land was owned by Thakur Madho Singh of Jasol. He orally made a gift of it to the Oswal Community on Ashad Sud 13, Sam vat 200. Thereafter, the cattle of the village were used to be tied on it. It was stated by the plaintiffs that on a part of this land, the defendants No. 2 to 6 have made an encroachment. Defendant No. 1 gave notice dated October 21, 1974 to the Oswal Community to remove the encroachment from the land in question. An objection was filed on October 27, 1974. Defendant No. 1 by its resolution dated April 6, 1975 resolved that a portion of the land may be sold to the Oswal Community for Rs. 5/ - and a patta be granted to them. Against the aforesaid resolution, an appeal was filed by the Panchayat Inspector before the Collector, Barmer, who, by his order dated March 2, 1976 set aside the resolution of the Panchayat and directed the Panchayat to sell the plot in question by public auction. As regards the plot marked ABCD in the plan appended to the plaint it was stated by the plaintiffs that an order dated July 27, 1975 was passed by the Panchayat asking them to remove their encroachment. In respect of the plot marked as DEFH, defendant No. 1 passed an order of removal of encroachment on July 27,1975. So far as the plot marked BIGPEC is concerned, defendant No. 1 passed an order for removal of the encroachment on August 24, 1975. As a result of the passing of the aforesaid orders, a notice under Section 79 of the Act was issued on April 10, 1975. In para 11 of the plaint, it was stated that the cause of action accrued to them on April 6, 1975. July 27, 1975 and August 24, 1975 when the orders for removal of the encroachment were passed by defendant No. 1. It was further stated that the cause of action accrued to them on September 14, 1976 also when a portion of the land in question was auctioned in favour of defendant No. 7 Smt. Sarjoo. In these circumstances, the plaintiffs filed a suit for declaration, injunction, possession and mense profits. Separate written statements were filed on behalf of defendant No. 1 and defendants No. 2 to 6. The suit was resisted on various grounds. One of the pleas laised in the written statements was that the suit of ths plaintiffs is barred by time on the ground that under Section 79(2)(b) of the Act, the suit of such nature and the reliefs prayed for, would only be filed within six months next after the accrual of the alleged cause of action. A rejoinder was filed to the written statement of defendant No. 1. On the pleadings of the parties, the learned District Judge framed as many as 22 issues inclusive of the relief. In this revision, I am only concerned with issue No. 18 which when translated into English runs as follows: Whether the plaintiff's suit is barred by time? The burden of this, issue was placsd on defendant No. 1 The learned District Judge heard the arguments on this issue and by his order dated July 19,19 7s held that the suit of the plaintiffs is not barred by time whereby he decided issue No. 18 against defendant No. 1. Aggrieved, defendant No. 1 has filed this revision questioning the correctness of the decision on issue No. 18.
(3.) I have heard Mr. A.D. Chopra, learned Counsel for the petitioner and Mr. H.C. Jain, learned Counsel for the plaintiff -non -petitioners.;