SALIM D. AGBOATWALA AND ORS.versusSHAMALJI ODDHAVJI THAKKAR AND ORS.

                         [2021] 9 S.C.R. 103                              103


              SALIM D. AGBOATWALA AND ORS.                                A
                                  v.
         SHAMALJI ODDHAVJI THAKKAR AND ORS.
                   (Civil Appeal No. 5641 of 2021)
                       SEPTEMBER 17, 2021                                 B
  [HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
       Code of Civil Procedure, 1908 – Or.VII, r.11(d) – Maharashtra
Tenancy and Agricultural Lands Act, 1948 – ss.32G, 32M, 85 and
85-A – The plaintiffs’ case that one ‘H’ died in the year 1946 and
                                                                          C
thereafter a suit was filed by his heirs in the year 1947 – In the said
suit, the High Court appointed a Receiver and he took over the
possession and management of the properties – 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 – Thereafter, another suit was filed by the persons          D
claiming to be legal representatives and successors in title of one
‘H’ in the year 1987 for setting aside an order passed by the
Agricultural Lands Tribunal in a tenancy case u/s. 32G of the
Maharashtra Tenancy and Agricultural Lands Act, 1948 and for
setting aside a sale certificate issued u/s.32M of the 1948 Act – The
                                                                          E
defendant took the defence that the plaint was liable to be rejected
u/Or.VII, r.11(d) CPC as (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 barred by limitation;
and (b) that in any case s.85 of the 1948 Act bars the jurisdiction
of civil Court – Accordingly, the civil Court rejected the plaint on      F
both the points raised by the defendant – The Regular First Appeal
by the plaintiffs was dismissed by the High Court – Before the
Supreme Court, it was contended by 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)
                                                                          G
that they came across the correspondence and documents relating
to the transactions and that the proceedings before the Agricultural
Lands Tribunal (ALT) were collusive, fraudulent and null and void
– The respondent contended that the against the orders passed u/
ss.32G and 32M the alternate remedy is u/s.74 before the Appellate
authority of the 1948 Act – Held: In the instant case, the plaintiffs     H
                                   103
104            SUPREME COURT REPORTS                        [2021] 9 S.C.R.


A     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 – 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
B
      of this case – The civil Court as well as the High Court refused to
      follow the procedure prescribed by s.85-A of the 1948 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 –
C     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 u/s. 74 of the 1948 Act – Further, the verasity
      of argument u/s. 88-B(1)(d) of the 1948 Act has not been tested
D
      before the trial Court or the High Court – Therefore, the civil Court’s
      jurisdiction cannot be said to have been ousted completely – Hence,
      the trial Court as well as the High Court committed error in rejecting
      the plaint u/Or.VII, r.11(d) – The judgment and decree of the Trial
      Court as well as the High Court are set aside and the suit is restored
E     to file.
            Allowing the appeal, the Court
            HELD: 1. There was rejection of plaint on the ground of
      limitation. It is needless to emphasis that limitation is a mixed
      question of fact and law. It is the case of the appellants/plaintiffs
F     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
G     appellants/plaintiffs have even questioned the authority of the
      Court Receiver to represent them in the tenancy proceedings.
      [Para 10][111-B-C]
            2. The above averments may or may not be true. But if the
      plaintiffs succeed in establishing the above averments, the issue
H     of limitation cannot be put against the plaintiffs. Generally a party,
     SALIM D. AGBOATWALA v. SHAMALJI ODDHAVJI                          105
                    THAKKAR

who never had any notice of a particular proceeding before a quasi-    A
judicial authority, is entitled to approach the Court upon gaining
knowledge of the proceedings. Limitation cannot be put against
such a party. [Para 11][111-D-E]
      3. This Court is not dealing here with a case where notices
were ordered to be issued, but were not or could not, be served        B
on necessary and proper parties. It is 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      C
not right in rejecting the plaint on the ground of limitation,
especially in the facts and circumstances of this case. [Para
12][111-E-F]
      4. Though Section 85(2) of the Maharashtra Tenancy and
Agricultural Lands Act, 1948 mandates that no order of the             D
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. [Para 21][114-G-H]
      5. Section 85A inserted by Bombay Act 13 of 1956                 E
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     F
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. [Para
22][115-A-B]
      6. If the bar under Section 85(2) was absolute, the Civil        G
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. [Para 23][115-B-C]                         H
106            SUPREME COURT REPORTS                          [2021] 9 S.C.R.


A            7. 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. The Collector is the appellate authority under
B
      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 the respondents that a party who suffered an order from the
C     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. [Para 24] [115-
      D-G]
D           8. But the contention of the respondents 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 authorities, the sale as well as mutation took place
      without any notice to any of the interested parties. Collusion and
E     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
F     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
G     the High Court. This Court does 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.


H
        SALIM D. AGBOATWALA v. SHAMALJI ODDHAVJI                           107
                       THAKKAR

Therefore, the Civil Court’s jurisdiction cannot be said to have           A
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. [Para
25][115-H; 116-A-E]
                                                                           B
        P. V. Guru Raj Reddy v. P. Neeradha Reddy and Others
        (2015) 8 SCC 331 : [2015] 1 SCR 1108; Chhotanben
        v. Kiritbhai Jalkrushnabhai Thakkar (2018) 6 SCC 422
        : [2018] 3 SCR 442; Ram Niwas (Dead) v. Bano (Smt.)
        & Ors. (2000) 6 SCC 685 : [2000] 2 Suppl. SCR 39;
        Rajasthan Housing Board v. New Pink City Nirman                    C
        Sahakari Samiti Limited & Anr. (2015) 7 SCC 601 :
        [2015] 5 SCR 365 – referred to.
        Murlidhar Bapuji Value v. Yallappa Lalu Chaugule
        (1994) SCC Online Bom 72; Parvathathammal v.
        Sivasankara Bhattar and Others (1951) SCC Online                   D
        Mad 23 – referred to.
                        Case Law Reference
[2015] 1 SCR 1108                  referred to            Para 13
[2018] 2 Suppl. SCR 39             referred to            Para 15          E
[2015] 5 SCR 365                   referred to            Para 15
        CIVIL APPELLATE JURISDICTION: Civil Appeal No.5641 of
2021.
      From the Judgment and Order dated 26.02.2014 of the High Court       F
of Judicature at Bombay in First Appeal No.948 of 2012.
      Kevic Setalvad, Sr. Adv., Nimish Kothare, Nikhil Mutha, Dr. Joseph
Aristotle S., Advs. for the Appellants.
     Shekhar Napadhde, Sr Adv., Mahesh Agarwal, Ankur Saigal,
Hemang Reythala, Nishant Rao, Rajeev Gupta, E. C. Agrawala,                G
Aniruddha Joshi, Ms. Charu Ambwani, Advs. for the Respondents.




                                                                           H
108             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A           The Judgment of the Court was delivered by
            V. RAMASUBRAMANIAN, J.
            1. Leave was granted on 07.09.2021.
            2. Their plaint having been rejected by the trial court under Order
B     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
C     Advocate and Mr. Aniruddha Joshi, learned Advocate appearing for the
      contesting respondents.
             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
D     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
E                  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
F
                   binding upon the plaintiffs;
            (b)    It be declared that Certificate issued by A.L.T. Borivaly,
                   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,
G                  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;

H
SALIM D. AGBOATWALA v. SHAMALJI ODDHAVJI                            109
    THAKKAR [V. RAMASUBRAMANIAN, J.]

(c)   It be further declared that Defendant Nos. 1 and 2 and        A
      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           B
      ordered and decreed to hand over to the Plaintiffs and/
      or to Defendant No.3 the Court Receiver, Vacant and
      peaceful possession o 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;
                                                                    C
(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 Civil Procedure
      Code from the date of the suit till the date of delivery of
      possession of the suit land, bearing Survey No.216 Hissa      D
      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        E
      land including the structure standing thereon under
      Order 40 Rule 1 of the Civil Procedure Code 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             F
      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              G
      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, and/or carrying on
      construction work of any nature whatsoever upon the
                                                                    H
110             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A                   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
B     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
C     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
D     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.
E            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) CPC. It is relevant to note that this
F     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
G     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.
H
         SALIM D. AGBOATWALA v. SHAMALJI ODDHAVJI                                111
             THAKKAR [V. RAMASUBRAMANIAN, J.]

       9. Aggrieved by the said order, the plaintiffs filed a regular appeal     A
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     B
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           C
void. The appellants/plaintiffs have even questioned the authority of the
Court Receiver to represent them in the tenancy proceedings.
       11. 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          D
never had any notice of a particular proceeding before 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          E
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            F
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 vs. P.
Neeradha Reddy And Others1, the rejection of plaint under Order VII
Rule 11 is a drastic power conferred on the Court to terminate a civil           G
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
1
    (2015) 8 SCC 331                                                             H
112             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A     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.
             14. Again as pointed out by a three member bench of this Court in
      Chhotanben vs. Kiritbhai Jalkrushnabhai Thakkar2, the plea regarding
      the date on which the plaintiffs gained knowledge of the essential facts,
B     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
C     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)
      vs. Bano (Smt.) & Ors.3; Rajasthan Housing Board vs. New Pink
      City Nirman Sahakari Samiti Limited & Anr.4; Murlidhar Bapuji
      Valve vs. Yallappa Lalu Chaugule 5 ; Parvathathammal vs.
D     Sivasankara Bhattar And Others.6.
             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
E     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
F     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
G     made, or gross negligence, he would have known it. The relevant part of
      Section 3 together with Explanation II thereunder reads as follows:
      2
        (2018)6 SCC 422
      3
        (2000) 6 SCC 685
      4
        (2015) 7 SCC 601
      5
        (1994) SCC Online Bom 72
      6
H       1951 SCC Online Mad 23
      SALIM D. AGBOATWALA v. SHAMALJI ODDHAVJI                               113
          THAKKAR [V. RAMASUBRAMANIAN, J.]

      “a person is said to have notice” of a fact when he actually           A
      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
      Explanation II.—Any person acquiring any immovable
      property or any share or interest in any such property shall           B
      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       C
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.                                                              D

       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    E
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    F
dealing with an application for rejection of plaint.
       20. 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     G
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          H
114            SUPREME COURT REPORTS                          [2021] 9 S.C.R.


A           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
B
            [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.
C
                 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
D           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
E           authority”), the Civil Court shall stay the suit and refer such
            issues to such competent authority for 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
F           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.”
G
             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.
H
        SALIM D. AGBOATWALA v. SHAMALJI ODDHAVJI                                 115
            THAKKAR [V. RAMASUBRAMANIAN, J.]

       22. Section 85A inserted by Bombay Act 13 of 1956 prescribes a            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
                                                                                 B
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   C
under the Act and disposing of the suit after receipt of a decision from
the competent authority, would not arise.
        24. 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             D
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                E
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    F
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           G
for the respondent, on the decision of the Bombay High Court in Vithoba
Rama Randive vs. Dhairyasinhrao Bhayasaheb Ghatge and Ors.7
       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
7
    AIR 1972 Bombay 122                                                          H
116                SUPREME COURT REPORTS                         [2021] 9 S.C.R.


A     Estate was in the administration of the Court Receiver and that in collusion
      between the Court Receiver and the Revenue 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,
B
      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
C     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
D
      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
E     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.

F
      Ankit Gyan                                                     Appeal allowed.




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