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Parsha and ors. Vs. Lagmya Shan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom83
AppellantParsha and ors.
RespondentLagmya Shan and ors.
Excerpt:
a jurisdiction - bombay hereditary offices' act (iii of 1874), section 18--suit--by village mahars to recover ay a--declaratory suit. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law..........they have in the suit, have omitted to adopt the procedure prescribed by section 30 of the code of civil procedure. with that objection it is unnecessary for us to deal, as we concur with the lower appellate court in holding that the suit itself is not maintainable in a civil court.2. the claim is based on the alleged right of the plaintiffs to perform the duties in respect of which the aya is payable. they do not seek to establish their right generally to be recognized as mahars, from whose number the collector could, under section 18 of bombay act iii of 1874, select, according to the procedure thereby provided, the persons liable to perform the duties; in which case the principle of the decision in ramchandra dabholkar y. anant sat shenvi i.l.r. 8 bom. 25 might possibly be applicable.....
Judgment:

Birdwood, J.

1. In this suit the plaintiffs claim as vatandar Mahars of certain villages, the right to receive the aya relating to their office, as against defendants Nos. 1 to 5, who are Mangs of the same villages and claim the right to receive the aya equally with the plaintiffs. The plaintiffs sue also to restrain the defendants Nos. 6 to 15 from paying aya to the defendants Nos. 1 to 5. An objection was taken to the suit that the plaintiffs, who belong to a numerous class, having the same interest as they have in the suit, have omitted to adopt the procedure prescribed by Section 30 of the Code of Civil Procedure. With that objection it is unnecessary for us to deal, as we concur with the lower appellate Court in holding that the suit itself is not maintainable in a Civil Court.

2. The claim is based on the alleged right of the plaintiffs to perform the duties in respect of which the aya is payable. They do not seek to establish their right generally to be recognized as Mahars, from whose number the Collector could, under Section 18 of Bombay Act III of 1874, select, according to the procedure thereby provided, the persons liable to perform the duties; in which case the principle of the decision in Ramchandra Dabholkar y. Anant Sat Shenvi I.L.R. 8 Bom. 25 might possibly be applicable to the case; but they claim the right themselves to perform the duties on account of which the ay A is payable. The suit is, therefore, barred by Section 18 of the Act, the clear intention of which is to leave such a matter to be defined, on an application being duly made to the Collector in that behalf, by the Panchayat appointed under the section. Section 64 of the Act, moreover, empowers the Collector to determine the right and duties of vatandars independently of any control by the Civil Court. The case is, therefore, governed by the decisions in Khando Narayan v. Apaji Sadashiv I.L.R. 2 Bom. 371 and Chinto Aboji v. Lakshmibai I.L.R. 2 Bom. 375 . In the former case it was said that 'the Civil Courts have no power to give to the plaintiff the declaration that he seeks, because not only can they not afford a consequential remedy, but because they can no longer establish a right which the Collector would be bound to respect.' The latter case was one under Section 25 of the Act, which has no immediate bearing on the present case, as it does not apply to hereditary offices of lower degree than Patel or Kulkarni (see Section 3 of the Act). But the principle of that decision is applicable to the present case; and the argument relied on in the judgment of Westropp, C.J., shows that Section 18, as much as Section 25, excludes by direct implication any right on the part of the Civil Courts to declare that persons are eligible to serve as hereditary officers under the Act. On these grounds we confirm the decree of the lower appellate Court with costs.


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