1. The question raised in this application is on the construction of the newly added explanation to Section 5 of the Mamlatdars' Courts Act (Bom. Act II of 1906).
2. The lands originally belonged to one Magan. He passed a conveyance in favour of Tatya the father of the opponent No. 1 Shripat, The purchaser sued both Magan and his son Sandu for possession on the ground that, the entire survey number had passed to him. He succeeded in the trial Court. Rut in appeal the appellate Court held that Sandy's share had not been transferred, and granted opponent No. 1 a declaration that ho had a half share and was only entitled to joint possession. The opponent No. 1 took no steps to execute the decree or to be placed in joint possession. On May 15, 1927, Sandu placed the applicants plaintiffs in possession under a lease for eleven months as tenants. On June 13, 1927, the opponent No. 1 dispossessed them. The applicants brought the present suit under the Mamlatdar's Courts Act for being re-instated in possession and, succeeded before the Mamlatdar who disbelieved the opponent's defence that he had obtained peaceful possession from Sandu. In revision the Collector up-held the plea not expressly taken before the Mamlatdar and held that the opponent had taken possession as a co-sharer on the strength of his decree, and that he was then fore protected by the explanation to Section 5 of the Maimlatdars' Courts Act. The plaintiffs apply in revision.
3. The argument for the petitioners is that in the light of the history of the addition of the explanation to Section 5 and on the findings of fact of the Mamlatdar, as the opponent No. 1 had taken the law into his own hands and had dispossessed the, petitioners within six months, the petitioners are entitled to succeed. For the opponent it is contended that as a co-sharer and therefore a part owner within the period of twelve years before the suit, the opponent is protected by Section 5, ill. 1, and if, as held by this Court, a cosharer cannot be placed in joint possession, neither can the tenants of a co sharer such as the present petitioners avail themselves of the Mamlatdars' Courts Act. Section 5 does not apply to a co-sharer such as the opponent No. 1 with his right to a share unless within twelve years.
4. The Collector way in my opinion wrong in allowing a plea not merely absent from the pleas taken before the Mamlatdar but in faot entirely inconsistent with them, Before this Mamlatdar the opponent's case was expressly that Sandu had placed him in possession of the southern half of the field now is question. His argument before the Collector wan expressly based on joint possession of the whole field taken by him as a co-sharer without Sandu's consent, Further, the view of the Collector with regard to the explanation is not in my opinion correct, it has been held by this Court in Keso v. Moro (1883) P.J. 120 that a plaintiff co-sharer who never had Sole possession but only claimed to have been in joint possession could not be re-instated in such joint possession against another co-sharer inasmuch as the issues and the decrees open under the Mamlatdars' Courts Act did not provide either for joint possession or for partition. This view was followed in subsequent cases such as Krishna v. Gopala (1890) P.J. 316 and doubted in others such as Shivdevrav v. Bhagvantrao (1895) P.J. 502. The subsequent addition of the explanation now in question was, as held in Jina Jibhai v. Mathur : (1921)23BOMLR1016 in confirmation of the view in the earliest caSe above-Keso v. Moro. In Jina Jibhai v. Mathur the whole field was in the joint possession of the plaintiff and the defendant. The defendant had ousted the plaintiff from joint possession. This Court in revision held, as in Krishna v. Gopala (1980) P.J. 316 that the Mamlatdar had no jurisdiction under the explanation to decree joint possession to the plaintifl and set aside his order, which the Collector had upheld.
5. The present case, where admittedly a co-sharer such as Sandhu had sole possession, could not in my opinion fall within the scope of the explanation of these cases,-all of which related to the admitted joint possession, prior to the alleged dispossession of on of the co-sharers. And speaking for myself, I am unable to see why a co-sharer, when he actually has sole- possession, and is dis-192s possessed by another co-sharer who has taken the law into his own hanJa should be less entitled to the summary remedy of the Act than any other parson. In the present case, the actual disspossion has been not of the co sharer Sandu but of his tenant the petitioner, As has been held by this Court in Goma v. Narsingro I.L.R (1895) Bom. 260. the Act being concerned with actual physical possession a tenant dispossessed must, sue himself and the landlord cannot sue, and for the purposes of that Act, the possession of a tenant is not on behalf of the landlord. To an obstruction by one sharer to a tenant hi possession the Mamlatdars Courts Act applies : Shiddapa v. Vishnu (1893) P.J. 147.
6. In regard to the argument based on Section 5 and ill. 1, the words not being a person who has been a former owner or part-owner' in that clause qualify only the words immediately preceding of any other person the determination of whose tenancy on other right is in questions as is also plain from the illustration; and it is therefore of no avail to the opponent.
7. As regards the expiry of the period of the petitioner's lease within a few days, this Court is concerned with the rights of the parties on the date of the institution of the suit rather than with the consequences of the enforcement of the order. The petitioners were in possession as their lessor. The co-sharer Sandu had himself been In possession. The opponent, for some reason or other, not apparent, failed in the civil suit to claim joint possession in the alternative and has never obtained it from Court. But instead, ho took the law into his own hands and ejected from the southern half the petitioner who was in legal possession. On these fact the Mamlatdar in my opinion was right and Collector's order was wrong.
8. The rule is made absolute, the Collector's order is set aside, and the order of the Mamlatdar restored with costs throughout cm the opponent No. 1,