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Shamrao Ambaji Nadgouda Vs. Holya Subhanna Samagar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberAppeal No. 18 of 1936
Judge
Reported inAIR1937Bom494; (1937)39BOMLR920
AppellantShamrao Ambaji Nadgouda
RespondentHolya Subhanna Samagar
DispositionAppeal dismissed
Excerpt:
.....authorities, the civil court had no jurisdiction to entertain the suit having regard to the provisions of section 4 of the bombay revenue jurisdiction act, 1876 :-;(1) that the order of the revenue authorities was merely an order setting aside the mortgage of 1923;;(2) that the order made by them did not in effect hold that the plaintiffs' claim to be permanent tenants was invalid;;(3) that even if the order of the revenue authorities purported to dispose of the plaintiffs' claim to be permanent tenants, the order to that extent was ultra vires;;(4) that, therefore, section 4 of the bombay revenue jurisdiction act had no application and the jurisdiction of the civil courts was not barred. - .....is an alienation without the sanction of government. it is plain that where one is dealing with a claim to a permanent tenancy founded on section 83 of the bombay land revenue code by possession from time immemorial, and where from the nature of the case the origin of the alienation is lost in obscurity, it cannot possibly be proved that that alienation was made without the sanction of government. for that reason alone i am of opinion that the alienation referred to in section 11 of the watan act does not cover a title sought to be made under section 83 of the bombay land revenue code by possession from time immemorial. whether the alienation under section 11 would cover other cases of a title sought to be established by adverse possession it is not necessary for me to consider. in my.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from an order of remand made by the District Judge of Belgaum. The facts are that in 1923 one Ambaji was the owner of the property in suit, which is watan property, and in that year he mortgaged it for ten years to the plaintiffs or their predecessors. Ambaji died in 1930, and in 1931 his widow adopted the defendant. After his adoption the defendant claimed from the revenue authorities restoration of the watan property, and the Assistant Collector made an order for such restoration. Before the Assistant Collector the plaintiffs relied on their mortgage of 1923, but they also claimed that they were permanent tenants under Section 83 of the Bombay Land Revenue Code as having been in possession from time immemorial. The actual order that the Assistant Collector made was this. He said :-

I find that the lands were alienated in 1922 by applicant's father to the father of opponent No. 1. Applicant's father is dead and the land being watan land and alienated after the passing of the Watan Act, I declare the alienation null and void under Section 11, Watan Act, and order that the property shall henceforth revert to the watan.

In the reasons for this order the Assistant Collector expressed the view that the plaintiffs did not establish their claim of ancient possession, but the only alienation which he declared null and void was the mortgage of 1922. The plaintiffs appealed to the Collector, and subsequently to the Commissioner, but the order of the Assistant Collector was confirmed. The plaintiffs thereupon filed this suit asking for a declaration that they are permanent tenants of the land in suit, and for an injunction to restrain the defendant from interfering with their possession. The trial Judge came to the conclusion that he had no jurisdiction to entertain the suit, having regard to the provisions of Section 4 of the Bombay Revenue Jurisdiction Act. In appeal the District Judge held that in so far as the order of the revenue authorities dealt with the plaintiffs' claim to be permanent tenants the order was ultra vires. The question before me is whether that view is right.

2. Under Section 4 of the Bombay Revenue Jurisdiction Act, no civil Court shall exercise jurisdiction as to, amongst other matters, suits to set aside or avoid any order under Bombay Act III of 1874, that is, the Watan Act, or any other law relating to the same subject for the time being in force passed by Government or any officer duly authorised in that behalf. So that if the plaintiffs' claim involves the avoidance of the revenue officer's order, and if that order was a valid order, the suit does not lie. As I have said, in terms the order of the revenue authority merely sets aside the alienation of 1923, and it certainly would not be open to the plaintiffs in a civil suit to challenge that order or to seek to rely on that alienation. But it is said that the effect of the order make by the revenue authorities is to hold that the plaintiffs' claim to be permanent tenants is invalid, and to require the watan to revert on that basis. I am not sure that the order purports to go as far as that, but if in fact the order purports to dispose of the plaintiffs' claim to be permanent tenants, in my opinion, the order of the revenue authorities to that extent is ultra vires.

3. The order purports to be made under Section 11 of the Watan Act. That, section provides that when any alienation of the nature described in Section 10 shall take place otherwise than by virtue of, or in execution of, a decree or order of any British Court, the Collector shall, after recording his reasons in writing, declare such alienation to be null and void. It is curious that the section which deals only with alienations taking place otherwise than under a decree or order is required to be of the nature described in Section 10, which deals only with alienations made under a decree or order. However, one must give some meaning to Section 11, and I think that the section incorporates the features of the alienation described in Section 10 apart from the special feature that that alienation must be made in execution of a decree or order. But, apart from that feature, it is clear that the alienation referred to in Section 11 must be of the nature of that described in Section 10. Now the alienation described in Section 11 has been recently discussed by Mr. Justice Broomfield in Khangouda v. Secretary of State : AIR1937Bom121 and he comes to the conclusion that the alienation referred to in Section 11, read with Section 10, covers any case where a watan or any part thereof has passed without the sanction of the Government into the ownership or beneficial possession of any person other than the officiator, or, if the property has not been assigned, into the ownership or beneficial possession of any person not a watandar of the same watan. I think that is an accurate general summary of the type of alienation dealt with by Section 11, but the Court was not there dealing with an alienation brought about by adverse possession. It is to be noticed that under Section 10 the alienation must be without the sanction of Government, and indeed the only alienation of a watan which is forbidden by Section 5 is an alienation without the sanction of Government. It is plain that where one is dealing with a claim to a permanent tenancy founded on Section 83 of the Bombay Land Revenue Code by possession from time immemorial, and where from the nature of the case the origin of the alienation is lost in obscurity, it cannot possibly be proved that that alienation was made without the sanction of Government. For that reason alone I am of opinion that the alienation referred to in Section 11 of the Watan Act does not cover a title sought to be made under Section 83 of the Bombay Land Revenue Code by possession from time immemorial. Whether the alienation under Section 11 would cover other cases of a title sought to be established by adverse possession it is not necessary for me to consider. In my opinion, therefore, inasmuch as this suit deals only with the plaintiffs' claim to be permanent tenants, it is not barred by the order made by the revenue authorities. I think the order does not purport to dispose of such claim, but if it does, the order is to that extent ultta vires. In my opinion the view of the District Judge was right, and this appeal must be dismissed with costs.


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