Holding

The suit is not barred by limitation because the order under Section 27(4) was without jurisdiction and is a nullity, so the suit falls under Article 65 of the Limitation Act.

Summary

Ajudh Raj and others (plaintiffs) challenged an order passed by the Compensation Officer under Section 27(4) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, which granted Moti, the respondent, rights as a sub‑tenant. The plaintiffs claimed Moti was merely a labourer and that the officer lacked jurisdiction to make the order. The trial and first appellate courts held in favour of the plaintiffs, but the High Court set aside the decree on the ground that the suit was barred by the three‑year limitation period. The Supreme Court held that when an order under a special act is passed without jurisdiction, it is a nullity and the suit is governed by Article 65 of the Limitation Act, not by Articles 100 or 113. Consequently, the suit was not time‑barred, the High Court judgment was set aside, and the decree in favour of the plaintiffs was restored.

Issues considered

The appropriate limitation period applicable to a suit challenging an adverse order under a special enactment when the order is alleged to be without jurisdiction.
Whether an order passed without jurisdiction can be treated as a nullity, thereby bringing the suit within Article 65 of the Limitation Act.
Whether the Compensation Officer had jurisdiction to pass an order under Section 27(4) of the Himachal Pradesh Act in the facts of the case.

Legislation cited

Code of Civil Procedures. 100
Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953s. 27(2), s. 27(4)
Limitation Act, 1963s. 100, s. 113, s. 65

Subjects

Limitation periodSpecial enactmentSection 27(4)JurisdictionNullity of orderCivil suitAgricultural landTenant rights

Judgment

AJUDH RAJ AND ORS.
A
v.
MOTi, S/0 MUSSADI

MAY3, 1991

B [LAUT MOHAN SHARMA AND J.S. VERMA, JJ.]

Himachal Pradesh Abolition of Big Landed Estates and Land
Reforms Act, 1953: Section 27(4)-Acquisition of proprietary rights-
Adverse order made under section 27(4)-Suit to set aside order-
Period of Limitation-What is. ,-
c Limitation Act, 1963: Articles 65, JOO and 113-Adverse order
made under a Special Act-Order passed without jurisdiction-Suit
challenging the order-Period of Limitation-Article 65-Applicabi/ity
of.

D The respondent-defendant claimed the benefits under Section
27(4) ortbe Himachal Pradesh Abolition of Big Landed Estates and Land
Reforms Act, 1953 alleging that be was a sub-tenant cultivating the
disputed land. The Compensation Officer accepted bis claim and passed
an order in bis favour under Section 27(4). The appellants' father,
Plaintiff, challenged the order of Compensation Officer contending that
E the defendant was not entitled to the acquisition of the proprietory right
under section 27(4) because be was merely a labourer employed by him
and be bad never cultivated the disputed land. Both the Trial and the
Appellate Court accepted the plaintiff's case and concurrently held that
the defendant was not a sub-tenant and consequently the order passed
in bis favour under Section 27(4) was without jurisdiction. The plea of
F Limitation was rejected and the plaintiff's suit was decreed by holding
that be being the tenant in possession was entitled to the right under
section 27(4) of the Act.

On further appeal the High Court dismissed the plaintiff's suit on
the ground that the suit having been illed after a period of more than
G three years from the date of the order under section 27(4) it was barred
by limitation. Hence this appeal against the decision of the High Court. \

Allowing the appeal and setting aside the judgment of the High
Court, this Court,

H HELD: 1. The principle for deciding the question of limitation in

690
AJUDH RAJ v. MOTi 691

a suit filed after an adverse order under a Special Act is well-settled. If
A
the order impugned in the suit is such that it has to be set aside before
any relief can be granted to the plaintiff the provisions of Article 100
will be attracted and if no particular Article of the Limitation Act is
applicable the suit must be governed by the residuary Article 113,
prescribing a period of three years. Therefore, in a suit for title to an
immoveable property which has been the subject matter of a proceeding B
under a· Special Act if an adverse order comes in the way of the success
of the plaintiff, he must get it cleared before proceeding further. On the
other hand if the order has been passed without jurisdiction, the same
can he ignored as nullity, that is, non-existent in the eye of law and it is
not necessary to set it aside; and such a suit will be covered by Article
65. [693C-D] .
c
1.1 In the instant case the concurrent findings were that the
plaintiff was the owner in cultivating possession of the land and the
defendant was merely a labourer without any right of the tenant or a
sub-tenant. If the land was in cultivating possession of the plaintiff, the
compensation Officer did not have the jurisdiction to pass any order in D
defiance of section 27(2) and the land did not vest in the State at all.
Further, for the additional reason that defendant was not a tenant of
the land the order passed in his favour under Section 27(4) was again
without jurisdiction. Therefore, in absence of the conditions necessary
for the exercise of power under Section 27(4) the Officer lacked juris-
diction to act and it was not necessary for the Civil Court to formally E
set aside his order before passing a decree. What necessitated the
plaintiff to come to the civil court was the challenge to his title, and
the suit must he held to be covered by Article 65, and, therefore, not
barred by shorter pariod of limitation either under Article 100 or
Article 113. (693E, 694B-C-D)
F
Sheo Lal and Ors. v. Sultan & Ors., [1970) 2 S.C.R. 405 and
Mohd. Murtiza Khan v. State of M.P. and Ors., [1966) M.P.L.J., refer-
red to.

) State v. Sadh Ram, I.L.R. (HP) 1973 (2) 235 and Gangu and Ors.
v. Mahanraj Chand and Ors., A.I.R. 1934 Lahore 384, held inapplicable. G

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2225
of 1991.

From the Judgment and Order dated 12.10.1990 of the Himachal
Pradesh High Court in R.S.A. No. 134 of 1979. H
692 SUPREME COURT REPORTS [1991] 2 S.C.R.

A C.K. Mahajan and Ashok Grover for the Appellants.

The Judgment of the Court was delivered by

SHARMA. J. Special leave is granted. The appeal is directed
B against the judgment of the High Court setting aside the decree passed
by the trial court and the first appellate court in favour of the plaintiffs-
appellants, and dismissing their suit, on the ground of being barred by
limitation.

2. The subject matter of the present case is agricultural land in
Himachal Pradesh belonging to one Sham Sunder, the original
C plaintiff since dead, who was the father of the appellant No. 1 and the
grand-father of the appellants No. 2 and 3. The defendant-respondent,
Moti, alleging to be a sub-tenant cultivating the land, claimed the
benefits under Section 27 (4) of the Himachal Pradesh Abolition of Big
Landed Estates and Land Reforms Act, 1953, hereinafter referred to
D as the Act. Notice was issued to Sham Sunder which according to his
case was not served on him. The claim of Moti was accepted, amount
of compensation payable under Section 27 (4) of the Act was deter-
mined by the Compensation Officer and consequential orders were
passed in his favour. The present suit was filed by Sham Sunder chal-
lenging the aforesaid orders on the allegation that Moti was merely a
E labourer employed by him and he never cultivated the disputed land
and he, therefore, was not entitled to the acquisition of the proprietory
right under Section 27 (4) of the Act. The Suit was resisted by the
defendant. Both the trial court and the appellate court, accepted the
...__
plaintiff's case and concurrently held that Moti was not a sub-tenant
and hence, the order passed by the Revenue Officer in his favout
under Section 27 (4) of the Act was without jurisdiction. The plea of
F
limitation was rejected and the suit was decreed holding that Sham
Sunder being the tenant in possession was entitled to the right under
Section 27 ( 4) of the Act. -

3. In a further appeal under Section 100 of the Code of Civil
Procedure, the defendant contended before the High Court that the
G suit having been filed after a period of more than three years from the
day of the order under Section 27 (4) of the Act, was barred by limita-
tion. The Court agreed with him and dismissed the suit by the
impugned judgment. The High Court did not deal with any other
aspect in the case, stating that the defendant had not urged any other
point in support of the second appeal.
H
AJUDH RAJ v. MOTi (SHARMA, J.l 693

4. In the impugned judgment the High Court has held that "as a
A
consequence of the Order of the Compensation Officer under Section
27 (4), the title in the land stood vested in the appellant", and merely
because a longer period of limitation is provided for recovery of pos-
session under Article 65 of the Limitation Act, the suit can not be said
to be within the period of limitation. Accordingly either one year
period under Article 100 or in the alternative the three years' rule B
under Article 113 has been held applicable. We do not think that the
High Court is right.

5. The principle for deciding the question of limitation in a suit
filed after an adverse order under a Special Act is well-settled. If the
order impugned in the suit.is such that it has to be set aside before any
relief can be granted to the plaintiff the provisions of Article 100 will c
be attracted and if no particular Article of the Limitation Act is applic-
able the suit must be governed by the residuary Article 113, prescrib-
ing a period of three years. Therefore, in a suit for title to an immov-
J able property which has been the subject matter of a proceeding under
a Special Act if an adverse order comes in the way of the success of the D
plaintiff, he must get it cleared before proceeding further. On the
other hand if the order has been passed without jurisdiction, the same
can be ignored as nullity, that is, non-existent in the eye of law and it is
not necessary to set it aside; and such a suit will be covered by Article
65. In the present case the controversial facts have been decided in
favour of the plaintiff-appellant and the findings were not challenged E
before the High Court. The position, thus, is that the plaintiff was the
owner in cultivating possession of the land and the defendant Moti was
merely a labourer without any right of a tenant or a sub-tenant. The
question is as to whether in this background it is necessary to set aside
the order passed in favour of the respondent under Section 27 (4) of
the Act before the suit can be decreed or whether the plaintiff can get a F
decree ignoring the said order as void, in which case the suit
undoubtedly will be governed by Article 65.

6. The provisions of Section 27 (4) of the Act as also the other
provisions are limited in their scope. The preamble indicates that the
> object of the Act is to provide for the abolition of the big landed G
estates and to reform the law relating to tenancies in the Himachal ·
Pradesh. The expressions 'tenant', 'sub-tenant' as also other similar
expressions have to be understood in the sense they have been used in
the other statutes dealing with the relationship of landlord and tenant
, in agricultural lands. Section 27 of the Act provides for a transfer by
the law of the right title and interest of the land owner to the State H
694 SUPREME COURT REPORTS ~ [1991) 2 S.CR.

Government under sub-section (!). Sub-Section (2) is by way of an
A
exception with respect to land under the personal cultivation of the
land owner. Sub-Section (4) directs that the right, title and interest of ~

the land owner thus acquired, shall be transierred by the State, on
payment of compensation, to the tenant who cultivates such land.
Ut}der this provision, the order in the present case was passed in
B favour of Moti. If Moti was not a tenant or sub-tenant he was not
entitled to the benefits under the sub-section. lf the land was in
cultivating possession of the plaintiffs, as held in the present suit, the
Compensation Officer did not have the jurisdiction to pass any order
in defiance of sub-Section (2) and the land did not vest in the State at ~

all. Further, for the additional reason that Moti was not a tenant of the
land the order passed in his favour under Section 27(4) was again
c without jurisdiction. In absence of the conditions necessary for the
exercise of power under Section 27(4) the Officer lacked jurisdiction
to act and it was not necessary for the civil court to formally set aside
his order before passing a decree. What necessitated the plaintiff to
come to the civil court was the challenge to his title, and the suit must
D be held to be covered by Article 65, and, therefore, not barred by
shorter periods of limitation either under Article 100 or Article "1"13. ,.

7. The cases relied upon by the High Court do not support the
impugned judgment. In State v. Sadh Ram, l.L.R. (Himachal Pradesh)
1973 (2) 235, the Compensation Officer had passed an order under
E Section 27(4) of the Act, transferring the proprietary right to the
cultivating tenants of the land, excluding the trees standing thereon.
The transferee tenants filed a suit in respect of the trees, and the High
Court held that the suit was barred by limitation either under Article >-.

100 or Article l 13. The grievance of the tenant was not against the
exercise of the power of the Compensation Officer under Section 27
F ( 4) of the Act, rather he relied upon the same. The observations,
mentioned below, from the judgment of Pathak, C.J. (as he then was)
are enlightening and supporting the view expressed by us:

"This is not a case where the order made by the Compensa-
tion Officer is a nullity. If the Compensation Officer had ab
G initio no jurisdiction to take the proceeding and rnake an
order therein, he would have no jurisdiction to make any
'
order at all. In that event, the entire order made by him,
including that part of it which is in favour of the plaintiffs,
would be a nullity."

H In the full Bench judgment of the Lahore High Court in Gangu and
AJUDH RAJ v. MOTi [SHARMA, J.] 695

Others v. Mah~nraj Chand and Others, A.LR. 1934 Lahore 384 the A
decision on the question of limitation went against the plaintiff on
·• account of the special facts and circumstances of the case, as is clear
from the enunciation of the proposition (at page 389, column 2) to the
effect that if it is necessary for a plaintiff to get rid of an order made by
an Officer of the Government, which stands in his way before he can
B
obtain a certain relief and in order to obtain that relief he does not
specificaliy ask for the setting aside of the order but merely for a
declaratory decree still the suit should be deemed to be one to set aside
an order falling within the ambit of Article 14. It is material to note
~
that in that case, it was essential for the plaintiff to have got the order
of the Collector set aside, before asking for a decree.
c
8. Two cases of this Court, although not identical in facts nor
governed by the present Act, support the view which we are taking. In
Shea Lal and Ors. v. Sultan & Ors., I1970] 2 S.C.R. 405 the plaintiff
filed a suit for a decree for redemption after unsuccessfully moving the
Assistant Collector for similar relief under the Redemption of Mort-
D
gages (Punjab Act 2 of 1913) 1913, and a plea of limitation by virtue of
.., Article 14 of the Limitation Act, 1908, was raised. Agreeing with the
High Court this Court rejected the defence argument based on Article
14 on the ground that in the facts of the case it was not necessary to set
aside the order of the Assistant Collector before granting a redemp-
tion decree. The other decision in Mohd. Murtiza Khan v. State of
M.P. and Others, [1966] M.P.L.J. 933 arose out of a suit in which the E
interpretation of the provisions of the Bhopal Land Revenue Act was
involved. In similar situation as in the present appeal before us, this
~
Court held that Article 14 of the Limitation Act, 1908, had no applica-
tion to the suit as the order under the Bhopal Land Revenue Act had
·~ been passed without jurisdiction and could be ignored without gett-
ihg it set aside. Article 142 of the Limitation Act was applied. F

9. For the reasons mentioned above we set aside the impugned
judgment of the High Court and restore the decree passed by the first
appellate court. The appeal is accordingly allowed with costs through
) out.

T.N.A. Appeal allowed.