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Gulabbhai Gopalji and ors. Vs. Jinabhai Ratanji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom213
AppellantGulabbhai Gopalji and ors.
RespondentJinabhai Ratanji
Excerpt:
mamlatdars' act (bombay act iii of 1876), section 15, clause (c) - suit for injunction--person dispossessed in execution of decree--his remedy by suit or application under section 332 of the code of civil procedure (act xiv of 1882). - .....to hear all the evidence that is then and there before him, and to try the following issues, viz...(c) if the plaintiff avers that he is still in possession of the property, or in the enjoyment of the use, but that the defendant disturbs or obstructs, or has attempted to disturb or obstruct, him in his possession or use-(1) whether the plaintiff or any person in his behalf is actually in possession or enjoyment of the property or use claimed:(2) whether the defendant is disturbing or obstructing, or has attempted to disturb or obstruct, him in such possession or enjoyment:(3) whether such disturbance or obstruction, or such] attempted disturbance or obstruction first commenced within sis months before the suit was filed.direction contained in section 15 of the act. we, therefore,.....
Judgment:

Birdwood, J.

1. The suit in the Mamlatdar's Court was one falling under Clause (c) of Section 15(1) of Bombay Act III of 1876; and the first issue in it was, whether the plaintiff was actually in possession of the property claimed. Unless he was in possession at the time of the suit, he could not obtain any relief under Clause (c). The Mamlatdar found that he had, as a matter of fact, been dispossessed before the filing of the suit by a bailiff of a Civil Court in the execution of a decree obtained by the defendants against a third person. He, however, granted the relief prayed for, as he was of opinion that the bailiff had improperly given possession to the defendants without making 'any inquiry of the village kamdar as to the true facts of the case.' But that was not a question with which the Mamlatdar was concerned. It is clear that, in the present case, the plaintiff should have proceeded for the alleged obstruction of his possession by the defendants, not by a suit under the Mamlatdars' Act, but by an application under Section 332 of the Civil Procedure Code or by a regular suit, as advised. The Mamlatdar acted illegally in making a decree in the plaintiff's favour in opposition to the distinct

(1)Section 15.--On the day appointed the Mamlatdar shall proceed to hear all the evidence that is then and there before him, and to try the following issues, viz...

(c) If the plaintiff avers that he is still in possession of the property, or in the enjoyment of the use, but that the defendant disturbs or obstructs, or has attempted to disturb or obstruct, him in his possession or use-

(1) whether the plaintiff or any person in his behalf is actually in possession or enjoyment of the property or use claimed:

(2) whether the defendant is disturbing or obstructing, or has attempted to disturb or obstruct, him in such possession or enjoyment:

(3) whether such disturbance or obstruction, or such] attempted disturbance or obstruction first commenced within sis months before the suit was filed.

direction contained in Section 15 of the Act. We, therefore, reverse the decree made by him, and reject the plaintiff's claim, with costs throughout.


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