MANU/SC/0657/2021

Equivalent Citation: 2021(227)AIC 145, AIR2021SC 5212, 2022(1)ALD331, 2021(6)ALLMR421, 2022(1)BLJ156, 2021 (4) C C C 103 , 2021(4)IC C 361,
2022(1)IC C 255, 2021 (3) MWN 225

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5641 of 2021 (Arising out of Special Leave Petition (C) No. 26441 of
2014)
Decided On: 17.09.2021
Appellants: Salim D. Agboatwala and Ors.
Vs.
Respondent: Shamalji Oddhavji Thakkar and Ors.
Hon'ble Judges/Coram:
Hemant Gupta and V. Ramasubramanian, JJ.
Case Category:
LAND LAWS AND AGRICULTURAL TENANCIES
Case Note:
Civil - Rejection of Plaint - Maintainability questioned for want of limitation -
Bar of jurisdiction of Civil Court - Order VII Rule 11(d) of the Code of Civil
Procedure, 1908 (CPC) - Sections 85, 32G of the Maharashtra Tenancy and
Agricultural Lands Act, 1948 (Act) - Plaint based on objections raised rejected
- High Court vide impugned judgment dismissed regular appeals filed by
Plaintiff/ Appellant - Hence, the present appeal
Facts:
Plaintiff filed a suit claiming that the person, to whom they claimed to have
succeeded, died in the year 1946, leading to some of his heirs filing a suit for
the administration of the estate left behind by him. In said suit, High Court
appointed a Receiver who took over possession and management of the
properties. According to the Plaintiffs, certain sales through Agricultural
Lands Tribunal and mutation in the revenue records were effected thereafter
without the knowledge and behind the back of heirs and legal representatives
and that the Plaintiffs came to know about the same, when they inspected
the records available with the Court Receiver. Therefore, the suit was filed to
set aside order passed by the Agricultural Lands Tribunal (ALT) in a tenancy
and for setting aside a sale certificate issued under Section 32M of the
Act.Order of the ALT passed was dated 28.11.1963 and the sale certificate
issued was dated 23.07.1954, but the suit was filed in March-1987. Second
Defendant in the suit sought rejection of the plaint, however challenge was
after 16 years of the institution of the suit.
Held, while allowing the Appeal:
Rejection of plaint on the ground of limitation is a mixed question of fact and
law. [10]
Answer to the issue regarding limitation, will depend upon the evidence with

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regard to the issuance and service of notice and the knowledge of the
Plaintiffs. Hence, 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.[12]
When a Plaintiff claims that he gained knowledge of the essential facts giving
rise to the cause of action only at a particular point of time, the same has to
be accepted at the stage of considering the application Under Order VII Rule
11.[13]
Insofar as the bar of the jurisdiction under Section 85 is concerned, the Act
contains a very strange provision, in Section 85-A, the like of which is not
found in many other statutes which contain provisions barring the jurisdiction
of Civil Courts. [20]
Section 85A inserted by Bombay Act 13 of 1956 prescribes a two stage
procedure for the Civil Court to follow, whenever a suit is instituted, despite
the bar contained in Section 85. In the first stage, the Civil Court should stay
the suit and refer the issues to the competent authority under the Act for
determination. In the second stage, the Civil Court should dispose of the suit
in accordance with the procedure applicable thereto, after receipt of the
decision of the competent authority, to whom the issues were referred for a
decision under the Act.[22]
The City Civil Court as well as the High Court refused to follow the procedure
prescribed by Section 85-A of the 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. [24]
Civil Court's jurisdiction cannot be said to have been ousted completely. The
Civil Court was obliged to see at least whether the appointment of a Receiver
for the administration of the Estate of a deceased person would actually fall
within the mandate of Clause(d) of Sub-section(1) of Section 88-B.[25]
Trial Court as well as the High Court were clearly in error in rejecting the
plaint Under Order VII Rule 11(d). Hence, the appeal is allowed. [26]

JUDGMENT
V. Ramasubramanian, J.
1. Leave was granted on 07.09.2021.
2. Their plaint having been rejected by the trial court Under Order VII Rule 11(d) of the
Code of Civil Procedure, 1908, and the said rejection having been confirmed by the High
Court in a first appeal, the Plaintiffs have come up with the above appeal.
3 . We have heard Mr. Kevic Setalvad, learned senior advocate appearing for the
Appellants and Mr. Shekhar Naphade, learned Senior Advocate and Mr. Aniruddha Joshi,
learned Advocate appearing for the contesting Respondents.

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4 . A group of 13 persons, claiming to be the legal representatives and successors in
title to the estate of one Haji Ali Mohammed Hajee Kassam Agboatwala, filed a civil suit
in S.C. Suit No. 2343 of 1987 on the file of the City Civil Court at Bombay. The reliefs
prayed for in this suit are as follows:
The Plaintiffs, therefore, pray that:
(a) It be declared that the judgment and order dated 28th November
1963 passed by A.L.T. Borivali, Bombay Suburban District, in Tenancy
Case No. 32-G/65-63 Dahisar, Part of Exhibit 'F' hereto, holding
Defendant No. 1 to be 'deemed Purchaser' of the suit land bearing
Survey No. 216, Hissa No. 4-A bearing C.T.S. No. 1879, of village
Dahisar Taluka Borivali, Bombay suburban District is null and void,
inoperative in law and not binding upon the Plaintiffs;
(b) It be declared that Certificate issued by A.L.T. Borivali, Under
Section 32-M of the Tenancy Act, part of Exhibit 'F' to this Plaint,
declaring Defendant No. 1 as 'deemed purchaser' of the suit land
bearing Survey No. 216, Hissa No. 4-A, bearing C.T.S. No. 1879 of
village Dahisar Taluka Borivali, Bombay Suburban District is null and
void inoperative in law and not binding upon the Plaintiffs;
(c) It be further declared that Defendant Nos. 1 and 2 and person
claiming through and under the said Defendants are trespassers on the
suit land bearing Survey No. 216, Hissa No. 4-A, bearing C.T.S. No.
1879 of Village Dahisar Taluka Borivali, Bombay suburban District;
(d) The Defendant Nos. 1 and 2 be jointly and severally ordered and
decreed to hand over to the Plaintiffs and/or to Defendant No. 3 the
Court Receiver, Vacant and peaceful possession of 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 to pay to the
Plaintiffs and/or Defendant No. 3, the Court Receiver, such mesne
profits as may be determined upon inquiry Under Order 20 Rule 12 of
the Code of Civil Procedure from the date of the suit till the date of
delivery of possession of the suit land, bearing Survey No. 216 Hissa
No. 4-A, bearing C.T.S. No. 1879 of Dahisar, Village Taluka, Borivali.
(f) That pending the hearing and disposal of the suit, Court Receiver,
High Court, Bombay or some other fit and proper person be appointed
as the Receiver of the suit land including the structure standing thereon
Under Order 40 Rule 1 of the Code of Civil Procedure with all powers
under the said Rule and he be directed to take possession of the suit
land being Survey No. 216, Hissa No. 4-A, bearing C.T.S. No. 1879 of
Dahisar, Village Taluka, Borivali.
(g) That pending the hearing and disposal of the suit, the Defendant
Nos. 1 and 2 their servants, agents, contractors, builders and/or
developers and all persons claiming through or under the said
Defendants be restrained by an order and induction of this Honourable
Court from disposing of alienating, parting with possession of,
encumbering by creating third party interest in any manner whatsoever,

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 and/or carrying on construction work of any nature whatsoever upon
the suit land or part thereof or any structure or part of the structure
standing on the suit land i.e. Survey No. 216, Hissas No. 4-A, bearing
C.T.S. No. 1879 of village Dahisar, Taluka Borivali in Bombay Suburban
District.
5. In brief, the claim of the Plaintiffs in the aforesaid suit was that the person, to whom
they claimed to have succeeded, died in the year 1946, leading to some of his heirs
filing a suit for the administration of the estate left behind by him. The said suit being
suit No. 3415 of 1947 was filed on the original side of the High Court of Bombay. By a
judgment dated 30.06.1950, the High Court appointed a Receiver and he took over
possession and management of the properties. According to the Plaintiffs, 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 and legal
representatives and that the Plaintiffs came to know about the same, when they made
an inspection of the records available with the Court Receiver. Therefore, the suit was
filed primarily for setting aside an order passed by the Agricultural Lands Tribunal (for
short "ALT") in a tenancy case Under Section 32G of the Maharashtra Tenancy and
Agricultural Lands Act, 1948 (for short "the Act") and for setting aside a sale certificate
issued Under Section 32M of the Act.
6 . Since the order of the ALT passed Under Section 32G of the Act was dated
28.11.1963 and the sale certificate issued Under Section 32M was dated 23.07.1954,
but the suit being S.C. suit No. 2343 of 1987 was filed in March-1987, the second
Defendant in the suit which is a Cooperative Society, took out a notice of motion for the
rejection of the plaint Under Order VII Rule 11(d) Code of Civil Procedure. It is relevant
to note that this notice of motion was taken out, by the second Defendant, only in the
year 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 of the competent authorities under the
Act carried out way back in 1963 and 1964 was hopelessly barred by limitation; and (b)
that in any case Section 85 of the Act bars the jurisdiction of Civil Court.
8 . The City Civil Court Bombay, by an Order dated 16.04.2012 allowed the notice of
motion and rejected the plaint on both the grounds raised by the second Defendant.
9 . Aggrieved by the said order, the Plaintiffs filed a regular appeal in First appeal No.
948 of 2012. The appeal was dismissed by the High Court of Judicature at Bombay by a
judgment and decree date 26.02.2014. 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 is concerned, 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.
1 1 . The above averments may or may not be true. But if the Plaintiffs succeed in
establishing the above averments, the issue of limitation cannot be put against the
Plaintiffs. Generally a party, who never had any notice of a particular proceeding before

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a quasi-judicial authority, is entitled to approach the Court upon gaining knowledge of
the proceedings. Limitation cannot be put against such a party.
12. We are not dealing here with a case where notices were ordered to be issued, but
were not or could not, be served on necessary and proper parties. We are dealing with a
case where the Plaintiffs 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. Hence, 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.
13. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy and Ors.
MANU/SC/0132/2015 : (2015) 8 SCC 331, the rejection of plaint Under Order VII Rule
11 is a drastic power conferred on the Court to terminate a civil action at the threshold.
Therefore, the conditions precedent to the exercise of the power are stringent and it is
especially so when rejection of plaint is sought on the ground of limitation. When a
Plaintiff claims that he gained knowledge of the essential facts giving rise to the cause
of action only at a particular point of time, the same has to be accepted at the stage of
considering the application Under Order VII Rule 11.
1 4 . Again as pointed out by a three member bench of this Court in Chhotanben v.
Kiritbhai Jalkrushnabhai Thakkar MANU/SC/0346/2018 : (2018) 6 SCC 422, the plea
regarding the date on which the Plaintiffs gained knowledge of the essential facts, is
crucial for deciding the question whether the suit is barred by limitation or not. It
becomes a triable issue and hence the suit cannot be thrown out at the threshold.
15. Referring to a few averments contained in the plaint, it is contended by the learned
Counsel for the Respondents that the Appellants had constructive notice of the
proceedings Under Section 32-G and the sale certificate issued Under Section 32-M. In
support of such a plea, the learned Counsel relies upon the following decisions, Ram
Niwas (Dead) v. Bano (Smt.) and Ors. MANU/SC/0468/2000 : (2000) 6 SCC 685;
Rajasthan Housing Board v. New Pink City Nirman Sahakari Samiti Limited and Anr.
MANU/SC/0521/2015 : (2015) 7 SCC 601; Murlidhar Bapuji Valve v. Yallappa Lalu
Chaugule; Parvathathammal v. Sivasankara Bhattar and Ors.
16. But a Defendant in a suit cannot pick up a few sentences here and there from the
plaint and contend that the Plaintiffs had constructive notice of the proceedings and that
therefore limitation started running from the date of constructive notice. In fact, the
plea of constructive notice is raised by the Respondents, after asserting positively that
the Plaintiffs had real knowledge as well as actual notice of the proceedings. In any
case, the plea of constructive notice appears to be a subsequent invention.
17. The decision in Ram Niwas (supra) which revolved around Explanation II Under
Section 3 of the Transfer of Property Act, 1882, cannot go to the rescue of the
Respondents. Section 3 of the Transfer of Property Act, 1882, provides that a person is
said to have notice of a fact, (i) either when he actually knows that fact; or (ii) when,
but for willful abstention from an enquiry or search which he ought to have made, or
gross negligence, he would have known it. The relevant part of Section 3 together with
Explanation II thereunder reads as follows:
a person is said to have notice" of a fact when he actually knows that fact, or
when, but for wilful abstention from an enquiry or search which he ought to
have made, or gross negligence, he would have known it.

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 Explanation II.--Any person acquiring any immovable property or any share or
interest in any such property shall be deemed to have notice of the title, if any,
of any person who is for the time being in actual possession thereof.
18. The 2 ingredients of the relevant part of Section 3 providing as to when "a person
is said to have notice", are matters of fact to be established through evidence. The
Respondents in this case cannot even fall back upon Explanation II which holds that a
person acquiring an immovable property will be deemed to have notice of the title of a
person in actual possession thereof. In this case, it was the Court Receiver who was in
possession and management of the entire Estate at the time of the impugned
proceedings and hence Explanation II cannot be used by the Defendants.
19. The decision in Rajasthan Housing Board (supra) also reiterates the two ingredients
of Section 3 of the Transfer of Property Act, 1882, and hence the same cannot be raised
in an application Under Order 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 to be
published in each village. It is not the case of Respondents that the Plaintiffs had real or
constructive notice of the proceedings by virtue of such a public notice. It is not even
known whether a public notice was ever published. Therefore, the plea of constructive
notice raised with a view to sustain the plea of limitation cannot be accepted at the
stage of dealing with an application for rejection of plaint.
2 0 . Insofar as the bar of the jurisdiction Under Section 85 is concerned, the Act
contains a very strange provision, in Section 85-A, the like of which is not found in
many other statutes which contain provisions barring the jurisdiction of Civil Courts. It
may be useful to extract Section 85 and 85A of the Act as follows:
85. Bar of jurisdiction
(1) No Civil Court shall have jurisdiction to settle, decide or deal with
any question [(including a question, whether a person is or was at any
time in the past a tenant and whether any such tenant is or should be
deemed to have purchased from his landlord the land held by him)]
which is by or under this Act required to be settled, decided or dealt
with by the Mamlatdar 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, the Collector or the
[Maharashtra Revenue Tribunal] or the [State] Government made under
this Act shall be questioned in any Civil or Criminal Court.
Explanation.--For the purposes of this Section a Civil Court shall
include a Mamlatdar's Court constituted under the Mamlatdar's Courts
Act, 1906.
85A. Suits involving issues required to be decided under this Act
(1) If any suit instituted in any Civil Court involves any issues which
are required to be settled, decided or dealt with by any authority
competent to settle, decide or deal with such issues under this Act
(hereinafter referred to as the "competent authority"), the Civil Court
shall stay the suit and refer such issues to such competent authority for

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 determination.
(2) On receipt of such reference from the Civil Court, the competent
authority shall deal with and decide such issues in accordance with the
provisions of this Act and shall communicate its decision to the Civil
Court and such Court shall thereupon dispose of the suit in accordance
with the procedure applicable thereto.
Explanation.--For the purpose of this Section a Civil Court shall include
a Mamlatdar's Court constituted under the Mamlatdar'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 the Act shall be questioned in any Civil
or Criminal Court, the bar contained therein stands diluted to some extent Under
Section 85-A.
22. Section 85A inserted by Bombay Act 13 of 1956 prescribes a two stage procedure
for the Civil Court to follow, whenever a suit is instituted, despite the bar contained in
Section 85. In the first stage, the Civil Court should stay the suit and refer the issues to
the competent authority under the Act for determination. In the second stage, the Civil
Court should dispose of the suit in accordance with the procedure applicable 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 Court would have no option
except to dismiss the suit. If the bar of jurisdiction is absolute, the question of the Civil
Court staying further proceedings in the suit, referring the issues for the adjudication of
the competent authority under the Act and disposing of the suit after receipt of a
decision from the competent authority, would not arise.
2 4 . The City Civil Court as well as the High Court refused to follow the procedure
prescribed by Section 85-A of the 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.
Supporting the view taken by the Trial Court and the High Court, it is contended by Mr.
Aniruddha Joshi, learned Counsel for some of the contesting Respondents that as
against the orders passed Under Section 32-G and 32-M, an alternative remedy of
appeal is provided under Clauses (mb) and (n) of Sub-section (1) of Section 74 of the
Act. The Collector is the appellate authority Under Section 74. Under Section 76-A, the
Collector even has suo motu power of revision, even in cases where no appeal has been
filed. Section 79 of the Act prescribes a period of 60 days as the limitation for filing an
appeal or revision. Therefore, it is contended by Mr. Aniruddha Joshi, learned Counsel
that a party who suffered an order from the ALT and who chose not to challenge the
same by way of an appeal or revision for a period of more than two decades, cannot
resurrect his right to avail statutory remedies, first by filing a suit and then seeking
recourse to Section 85-A. Reliance is placed in this regard by the learned Counsel for
the Respondent, on the decision of the Bombay High Court in Vithoba Rama Randive v.
Dhairyasinhrao Bhayasaheb Ghatge and Ors. MANU/MH/0082/1972 : AIR 1972 Bombay
122.
25. But the above contention of Shri Joshi overlooks an important facet of the case set
up by the Plaintiffs. According to the Plaintiffs, the Estate was in the administration of
the Court Receiver and that in collusion between the Court Receiver and the Revenue

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authorities, the sale as well as mutation took place without any notice to any of the
interested parties. 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 under the Act. In any case it is contended by the
learned Counsel for the Appellants that by virtue of Section 88-B(1)(d) of the Act, none
of the provisions of the Act, except a few, are applicable, "to lands taken under
management temporarily by the Civil, Revenue or Criminal Courts by themselves, or
through receivers appointed by them, till the decision of the title of the rightful
owners". The veracity of such argument has not been tested before the Trial Court or
the High Court. We do not know whether the exemption Under 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. Therefore, the Civil Court's jurisdiction cannot be said to have been ousted
completely. The Civil Court was obliged to see at least whether the appointment of a
Receiver for the administration of the Estate of a deceased person would actually fall
within the mandate of Clause(d) of Sub-section(1) of Section 88-B.
26. Therefore, we are of the considered view that the Trial Court as well as the High
Court were clearly in error in rejecting the plaint Under Order VII Rule 11(d). Hence, the
appeal is allowed, the judgment and decree of the Trial Court as well as the High Court
are set aside and the suit is restored to file. There will be no order as to costs.
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