1. This appeal raises a question as to the construction of the Bhagdari Act (Bombay Act V of 1862). The plaintiff sued to recover possession of a parcel of land alleging that it formed part of a bhag which was his ancestral property, and that in 1863 it and some other land were sold, in contravention of the Bhagdari Act, by his ancestors and those of defendants Nos. 4 and 5 to the ancestors of others of the defendants. It is admitted that the land in suit is an unrecognised sub-division of a bhag, and it is found as a fact by the Court below that the sale to the defendants’ predecessors took place in 1863, that is, after the coming into force of the Bhagdari Act,
2. The learned District Judge has allowed the plaintiff’s claim on the grounds that the sale of 1863 was void under Section 3 of the Bhagdari Act, and that no adverse possession of the land could be acquired by the first defendant so as to bar the suit under the law of limitation. Though other questions have been slightly discussed before us on behalf of the first defendant, who is the appellant here, it appears to me that the only point of substance is that which has reference to the Limitation Act. It is common ground that the sale of 1863 was void under Section 3 of the Bhagdari Act, and upon a consideration of the pleadings and the general conduct of the suit I am satisfied that the suit must be held to be barred by limitation unless it can be saved by virtue of the special provisions of the Bhagdari Act. Though no issue as to limitation was raised in the trying Court, the point was taken in the first defendant’s written statement, and has been discussed by the Judge below; having regard to these circumstances and to Section 4 of the Limitation Act, I think that Mr. Shah is entitled to argue the question of limitation in this appeal.
3. Now the argument, which found favour with the lower appeal Court, and which accordingly the appellant has now to displace, is that possession acquired under an alienation made in contravention of Section 3 of the Bhagdari Act can never become adverse so as to bar a suit for recovery by the individual alienor or his representatives in interest. This argument is grounded upon the general scheme and policy of the Act, and upon certain judicial decisions.
4. As to the scheme of the Act, it is apparent from the title, the preamble and the sections that the Act is a special or exceptional piece of legislation designed with the view to prevent the dismemberment of Bhagdari tenures. To give effect to this policy the legislature directs in Section 1 of the Act that no portion of a bhag, other than a recognised sub-division of such bhag, shall be liable to seizure under the process of any Civil Court. Then by Section 2 it is provided that on the issue of any such process for the seizure of any unrecognised portion of a bhag, the Collector may move the Court to set aside the process, and if the Court finds that the case falls with the Act, “it shall set aside or quash such process, and cause the provisions of this Act to be put in force.” Then follows Section 3, with which we are more immediately concerned in this appeal. It begins by reciting that “it shall not be lawful” to alienate or incumber any portion of bhag other than a recognised sub-division of such bhag; and the second paragraph enacts that any alienation contrary to the provisions of the section “shall be null and void; and it shall be lawful for the Collector * * * whenever he shall, upon due inquiry, find that any person is in possession of any portion of any bhag * * * other than a recognised sub-division of such bhag in violation of any of the provisions of this section, summarily to remove him from such possession, and to restore the possession to the person whom the Collector shall deem to be entitled thereto.” Then by the third paragraph it is laid down that any suit brought to try the validity of any order made by the Collector in the exercise of the above powers must be brought within three months after the execution of such order.
5. It has been hold by this Court in decisions which are binding upon us that under Section 3 of the Act the Collector may take action at any time; that his action is not subject to the law of limitation; and that the plea of adverse possession cannot prevail against any order which he may make: see Bai Dala v. Parag Khushal 4 Bom. L.R. 797 and Jethabhai Parbhudas v. Nathabhai Bavaji 28 B. 399; 6 Bom. L.R. 428. A reference to the former case will show how this principle is deduced from the general scheme of the Act and from the particular words authorising the Collector to take action whenever he shall find any person in apparently unlawful possession. But in this case no action has been taken by the Collector. It is the plaintiff himself who now seeks to disturb a possession extending over 40 years; and the question is whether the immunity from limitation, afforded to the Collector under the Act, should be extended also to a private party. I can find no warrant in the Act for that opinion; on the contrary, the policy of the Act, as I read the sections which I have endeavoured to summarise, is to vest in the Collector alone the special powers of interference conferred, leaving private parties to the operation of the ordinary law. And this view derives support from the consideration that the Collector is in a better position than the Civil Court to carry out the special objects of this particular Act with due regard to the aims of the Government as well as to any equities which may exist between the parties. But there is, I think, nothing to indicate that the exceptional position conferred on the Collector can be acquired by a party who after standing by for 40 years comes direct to the Court instead of availing himself of the special remedy provided by the Act. Reliance was placed by Mr. Thakore upon a passage in Chandavarkar, J.’s judgment in Jethabhai’s case 28 B. 399; 6 Bom. L.R. 428 where it was said that, on principle, such a title as the plaintiffs in that suit claimed to have acquired, could not be acquired by adverse possession. But this passage, as the following sentences clearly show, had reference to the particular claim advanced by the then plaintiffs who professed to hold the land as forming part of a narva holding and as subject to all the incidence of the tenure. No such claim is put forward here and the passage is, therefore, inapplicable to the present facts.
6. Then it was said that the possession obtained by the first defendant’s predecessor was possession obtained through a transaction which the law both prohibits and declares to be null and void. That is undoubtedly so, but it supplies no reason for supposing that such possession would not be adverse to the rightful owner. On the contrary, it is just such possession as this, that is, originating without colour of title, which is contemplated by the law of limitation: so, in the President and Governors of Magdalen Hospital v. Knotts (1879) 4 App. Cas. 324 possession obtained under void leases was held to be adverse. It is important to distinguish between the sale and the possession. The sale, no doubt, was void, and the law allowed the vendors (sic) time in which to have it set aside. But the appellant does not rest upon the sale; he takes his stand on the long possession following the sale, and the effect of that possession is not displaced by reference to its origin. So far as I can discover, the Act contains nothing which by express provision or necessary implication abrogates the law of limitation in favour of a private person.
7. For these reasons I am of opinion that the appeal should be allowed and that the suit, should be dismissed with costs throughout.