Basil Scott, Kt., C.J.
1. This suit was brought by Gangaram Hatiram to recover damages from the defendant on the allegation that ;he latter when Mamlatdar of Khanapur attached without authority 5 carts containing 100 pieces of jaggery belonging to ;he plaintiff on the Karad Nagar Road on the 8th of April 1910.
2. In his written statement the defendant pleads that on the 8th of April being Mamlatdar of Khanapur he was encamped at Kadepur and noticed 5 carts containing 100 pieces of jaggery were being taken by the plaintiff's son from Kadepur towards Kadegaum. On enquiry he learnt that the jaggery was from the fields of Daji Rudraji who owed arrears of land revenue to Government and had to satisfy two decrees in assistance cases. The defendant accordingly ordered that unless the plaintiff paid off the dues of Daji Rudraji, which after deducting Rs. 65 paid on the spot by Daji's son Vithu amounted to Rs. 98, forty pieces of jaggery should be attached.
3. The defendant pleaded on the above allegations : (a) that the jurisdiction of the Court to entertain the suit was barred under Section 4 (c) of the Bombay Revenue Jurisdiction Act 1876, () that the suit was barred under Section 6 of the same Act as he was acting bona fide and in pursuance of the provisions of the law for the time being in force relating to the recovery of the land revenue and arrears in assistance cases.
4. The defendant nowhere in the written statement denies the plaintiff's allegation in the plaint that the goods attached belonged to him.
5. Five issues were raised on the 16th of September 1911, three relating to the jurisdiction of the Court and two to the question of damages but no issue was raised as to the plaintiff's ownership of the goods.
6. At the hearing which commenced on the 21st of October it was decided with the consent of the parties at the hearing to treat the issues as to jurisdiction as preliminary issues.
7. They were :-
1. Whether the Court has jurisdiction to entertain the suit under Section 4 (c) of Act X of 1876.
2. Whether the defendant's action was not bona fide and in pursuance of the provisions of Sections 138 and 140 of the Bombay Land Revenue Code.
3. If so, whether the suit is not barred by Section 6 of Act X of 1876.
8. The learned Judge without giving any reasons decided the first issue in the negative.
9. On the second and third issues he held that the defendant was acting bona, fide but did not hold that he was acting in pursuance of the provisions of Section 140 of the Bombay Land Revenue Code mentioned in the issue. He held, however, that the defendant was authorised to distrain the property under the provisions of Section 154 of the Code, being of opinion that it was not necessary to require proof of the delegation of the powers of the Collector under that section to the defendant and that it lay on the plaintiff to show that the defendant had exceeded his authority by proof that the goods distrained were not the property of Vithu which the plaintiff had failed to do. The suit was dismissed with costs with interest thereon at 6 per cent.
10. We are of opinion that Section 4 (c) would not be a bar to a suit in which there is a claim arising out of the alleged illegality of the proceedings taken for the realization of land revenue. Where the legality of the proceedings initiated by a revenue officer is in question the Court has to inquire under Section 6 whether the act complained of was done bona fide by the officer in pursuance of the provisions of any law.
11. The recognition by civil Courts of claims against Government in respect of certain illegal levies is expressly provided for by Section 5 of the Act. The Government Pleader who appeared for the defendant did not contend that the Section 4 (c) applied to claims in respect of the current year's revenue but argued that it would apply to two sums recoverable in respect of arrears in assistance cases in respect of which an order for attachment of Daji's moveable property had been issued. That order has not been produced. We think that the proceedings mentioned in Section 4 (c) must be in their inception legal.
12. The second issue involves the inquiry whether the proceedings were legal. As has been pointed out the allegation that the goods seized were the property of the plaintiff is neither denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant or questioned in the issues. According to the terms of Order VIII, Rule 5, the Court was therefore bound to take it as admitted. For this reason presumably the defendant referred to Section 140 as the justifying provision of the Land Revenue Code. That section is one of the group of sections authorising precautionary measures to prevent the removal from land of a crop which has been sold, mortgaged or otherwise disposed of, until the current year's revenue has been paid.
13. The powers contained in those sections do not authorise the detention of anything but the crop of the land or the seizure of the crop or any other goods after removal from the lands. The officer expressly authorised by the sections to exercise the powers is the Collector but Section 12 enabled the Collector to delegate his powers to the Mamlatdar. The section is in the following terms :-
The chief officer entrusted with the local revenue-administration of a Taluka shall be called a Mamlatdar. He shall be appointed by the Commissioner of the division in which his Taluka is situated.
His duties and powers shall be such as may be expressly imposed or conferred upon him by this Act, or by any other law for the time being in force, or as may be imposed upon, or delegated to, him by the Collector under the general or special orders of Government.
14. Under Section 8 the Collector is the Collector of the District, the Mamlatdar being entrusted with the local revenue-administration of the smaller unit known as the Taluka. It follows that the Collector can only delegate powers for his own District and the Mamlatdar can only exercise delegated powers in the Talukas of the District in which the delegation occurred.
15. The defendant, however, produces in justification of his supposed action under Section 140 a document issued by the Collector of Khandesh under the authority of a Government Resolution conferring on the defendant authority to exercise the powers contained in Sections 140-143. No authority or delegation from the Collector of Satara, the District in which Khanapur is situate, is produced or alleged to exist. The defendant therefore has not shown that he is within the ambit of the law propounded by Section 140 of the Code. The law relating to revenue-administration so far as the Mamlatdar defendant was concerned did not include Section 140. How then can it be contended that he honestly intended to put that law in motion, to apply the test suggested in Hermann v. Seneschal (1862) 32 L.J.C.P. 43 cited in Dhondu v. Secretary of State : (1912)14BOMLR949 . The Government Pleader feeling the difficulty argued that the defendant could justify under Section 154 of the Land Revenue Code. But the first condition of the application of that section, assuming the existence of arrears, is that the property distrained should be the moveable property of the defaulter. Doubtless if it were established that the defendant believed the property to be that of the defaulter he might fairly contend that he was entitled to protection on the authority of Spooner v. Juddow (1850) 4 M.I.A. 353 and Section 6 of the Revenue Jurisdiction Act. The pleadings in this case, however, do not permit us to hold that the defendant believed the carts of the plaintiff contained the moveable property of the defaulter. The learned Judge was in error in holding that it lay on the plaintiff to show that the defendant exceeded his by proof that the goods distrained were not the property of the defaulter.
16. If it were necessary we should accede to the application of the plaintiff's counsel for a remand in order that the evidence of the plaintiff's vendor Amerchand might be recorded. Having regard to the pleadings and issues however this course is unnecessary.
17. We reverse the decree of the lower Court and remand the case for an inquiry as to the damages suffered owing to the illegal seizure of the plaintiffs property by the defendant. The costs of this appeal will be costs in the cause.