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Bhau Mangesh Wagle Vs. Ahmedbhoy Habibbhoy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Extraordinary Application No. 289 of 1805
Judge
Reported in(1906)8BOMLR312
AppellantBhau Mangesh Wagle
RespondentAhmedbhoy Habibbhoy
DispositionApplication allowed
Excerpt:
.....the first paragraph of s.4 of the act does not mention the words ' the use of roads or customary ways to fields,' he had no jurisdiction to grant to the plaintiff any relief :;that the mamlatdar had jurisdiction under section 4 to grant an injunction in case of obstruction or disturbance to the use of roads or customary ways to fields. a deprivation of an use is a disturbance. the mamlatdar was therefore in error in supposing that the terms in which the statutory issues are framed for a case where the plaintiff does not aver deprivation of an use, deprive the mamlatdar of the jurisdiction to try the issues (a), and give such relief as he has jurisdiction to give under the second paragraph of section 4 of the act. - - 'in the use of water from any well, tank, canal or water-course..........4 of the mamlatdars' act iii of 1876 does not mention the words 'the use of roads or customary ways to fields,' he had no jurisdiction to grant to the plaintiff any of the reliefs claimed.5. we have had a most elaborate argument from mr. bhandarkar with reference to section 4 of the act, and also section 15; and there can be no doubt that it is a very noticeable omission from the first paragraph of section 4 that the words 'or the use of roads or customary ways to fields ' do not follow the words ' to restore the use of water from wells etc. ' however why they do not so follow is perhaps somewhat difficult to say.6. but it appears to me that section 4 deals only with the remedies which can be given to a person who files a claim under the mamlatdars' act. if he is seeking immediate.....
Judgment:

Russell, J.

1. In this case a rule was issued by Mr. Justice Batty on the 24th December 1905, calling upon the defendants to show cause why the Mamlatdar's order should not be reversed, and the case sent back for re-trial on the merits on the ground that the facts calling for the exercise of his jurisdiction having been alleged, the Mamlatdar refused to inquire into them.

2. Now the first thing to do is to consider the nature of the claim set out in the plaint. The plaintiff alleges that at a place called Kanheri, in the Than a District, there are two pieces of land belonging to him: on a piece of land towards the north he has got his house, to the south of that there is a piece of land belonging to the first defendant, and to the south of that again is a field of the plaintiff: and the plaintiff says that for a considerable period of time, for many years, up till the 29th of April last, that is, 1905, he was in the habit of going to and fro through the piece of land belonging to the first defendant between the plaintiff's two pieces of land that I have mentioned. Then he says (after mentioning some police proceedings and magisterial proceedings which we need not go into) that the defendants have wrongfully closed his right of way ; and, according to his allegation, the defendants put a shed across the north end of this passage and put a cactus fence across the south end of it; and, under these circumstances, he says the defendants have closed the above-mentioned passage and stopped the enjoyment thereof; and he prays that the Court may order the defendants to remove the said cactus and the said shed and make the plaintiff's passage clear or unobstructed as before.

3. Now it appears that at the trial the Mamlatdar raised the following issues :-

(1). Whether the plaintiff or any person on his behalf or through whom he claims was in possession or enjoyment of the property or the use claimed up to any time within six months before the suit was filed ?

(2). Whether the first defendants is in possession at the time of the suit, and if so whether he obtained possession otherwise than by due course of law ?

4. The Mamlatdar has not recorded any findings upon those issues as he is directed to do by the Act, but he rejected the plaint upon the ground that inasmuch as the first paragraph of Section 4 of the Mamlatdars' Act III of 1876 does not mention the words 'the use of roads or customary ways to fields,' he had no jurisdiction to grant to the plaintiff any of the reliefs claimed.

5. We have had a most elaborate argument from Mr. Bhandarkar with reference to Section 4 of the Act, and also Section 15; and there can be no doubt that it is a very noticeable omission from the first paragraph of Section 4 that the words 'or the use of roads or customary ways to fields ' do not follow the words ' to restore the use of water from wells etc. ' However why they do not so follow is perhaps somewhat difficult to say.

6. But it appears to me that Section 4 deals only with the remedies which can be given to a person who files a claim under the Mamlatdars' Act. If he is seeking immediate possession of land etc., or the profits thereof, or for the restoration of the use of water from wells etc., the Mamlatdar has power to grant the remedy of putting him in possession thereof or granting the restoration thereof. That is one remedy in respect of these specific things. The other remedy is by an injunction under the following paragraph of the same section. (His Lordship read second paragraph of Section 4). It is obvious in reading it that the word 'of ' after 'or ' in ' or of the use of roads or customary ways to fields' is obviously a misprint for the word 'in', which is used in the preceding sentence, viz. ' in the use of water from any well, tank, canal or water-course etc.,' because otherwise if ' of ' was rightly used, the section would be intended to be worded ' possession of any lands, premises etc., or in the use of water from any well etc., or possession of the use of roads or customary ways to fields, ' which really is and would be unintelligible.

7. Looking therefore at paragraph 2, the remedy there is that where the person is obstructed or disturbed in the use of roads or customary ways to fields, the Court may grant an injunction to the person causing, or who has attempted to cause such disturbance or obstruction. That is another remedy which the Mamlatdar can give.

8. Now what do we find when we look at Section 15 Section 15 says, ' 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.-

(a). If the plaintiff avers that he has been unlawfully dispossessed of any property or deprived of any use :-

(1). Whether the plaintiff or any person on his behalf or through whom he claims was in possession or enjoyment of the property or use claimed up to any time within six months before the suit was filed.

(2). Whether the defendant is in possession at the time of the suit, and if so, whether he obtained possession otherwise than by due course of law.'

9. Now the words there used are ' deprived of any use'. It does not say 'any use' such as is mentioned in the first paragraph of Section 4 of the Act, but 'any use ' which, I apprehend, must be taken to mean ' any use of roads or customary ways as well as any use of water from any wells etc.'

10. Now what the plaintiff here alleges is that he has been obstructed in the use of this road to such an extent that he has been wholly deprived of the use thereof; and it is impossible to suppose that the second clause of Section 4 of the Act was intended to refer only to cases of partial obstruction when a person was wholly prevented from using the road.

11. Then the last paragraph of Section 15 is material.

If the Mamlatdar's finding upon these issues be in favour of the plaintiff, he shall make such order as the circumstances of the case shall appear to him to require, provided that the same be not in excess of the powers vested in him by Section 4 of this Act.

12. He is given an entirely free hand with regard to the remedy that he is to give. Therefore the remedy in this particular suit will not be only the restoration of the use of the ways but he may grant an injunction also, and this is clearly seen when one sees the form of injunction which is Form C. (His Lordship read the Form).

13. It seems to me, therefore, that the Mamlatdar was wrong in holding that he had no jurisdiction to try this case, and, in my opinion, the rule must be made absolute and I think with costs.

Aston, J.

14. The plaintiff averred that the defendant had unlawfully deprived him of the use of customary way to fields

15. The Mamlatdar instead of trying the statutory issues (Section 15 (a) of the Mamlatdars' Courts' Act III of 1876) as he is required to do by Section 15 of the Act, decided that he had no jurisdiction to try them.

16. The Mamlatdar has failed to notice that if the plaintiff established these two issues in the affirmative, the plaintiff would become entitled under the latter portion of Section 15 to such order as the circumstances of the case appear to require, provided that such order be not in excess of the powers vested in the Mamlatdar by Section 4. Section 15 must be read subject to Section 4: Nanabhai Sadanand v. Dwarkadas Dharamsi (1901) 3 Bom. L.R. 681.

17. As the Mamlatdar has jurisdiction under Section 4 to grant an injunction in case of obstruction or disturbance to the use of roads or customary ways to fields and a deprivation of an use is a disturbance, the Mamlatdar is in error in supposing that the terms in which the statutory issues are framed for a case where the plaintiff does not aver deprivation of an use, deprive the Mamlatdar of the jurisdiction to try the issues (a), and give such relief as he has jurisdiction to give under the second paragaph of Section 4.

18. The Rule must be made absolute with costs, the Mamlatdar's order being reversed and the case remanded for re-trial.


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