Basil Scott, Kt., C.J.
1. This is an application to us to exercise our revisional powers under Section 115 of the Civil Procedure Code with reference to an order passed by the Collector of East Khandesh purporting to be made under the revisional powers conferred upon him by Section 23(2), of the Marnlatdars' Courts Act (Bombay Act II of 1906).
2. The applicant was the defendant in a suit instituted in the Court of the Mamlatdar by the opponent. The Court has power under the Mamlatdars' Courts Act to give immediate possession of lands used for agriculture to any person dispos sessed or deprived thereof otherwise than by due course of law provided that the suit is brought within six months from the date on which the cause of action arose, the cause of action being deemed to have arisen on the date of the dispossession.
3. It is provided in Section 19 that if the plaintiff avers that he has been unlawfully dispossessed of any property the Mamlatdar shall proceed to hear all the evidence that is then and there before him and try 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 use claimed up to any time within six months before the suit was filed, and (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.
4. When the case came first before the Mamlatdar that officer being of opinion that the dispute between the parties was of a complicated nature fit to be decided in the Civil Court referred the parties to a Civil Court and came to no finding upon the statutory issues.
5. There was an application under Section 23(2), of the Act to the Collector that the Mamlatdar's order should be set aside and that he should be directed to hear the case. The Collector on that application set aside the order and directed the Mamlatdar to hear the case. The Mamlatdar then heard the case and recorded evidence both oral and documentary and decided the statutory issues in favour of the defendant. Accordingly the suit was dismissed with costs.
6. An application was then made to the Collector to set aside , the order of the Mamlatdar, and the Collector has set aside the order upon the ground that although the Mamlatdar has considered the oral evidence and weighed it, he has not considered the enormous weight of evidence of Government records in favour of the plaintiff, namely, first, the plaintiff has got the khata of the land changed from the defendant's names to his own at the defendant's consent, (secondly), the plaintiff is the recognized owner in the Record of Rights, (thirdly), the plaintiff has been recognized as the man from whom fees should be taken for subdividing the Survey Numbers, (fourthly), the plaintiff pays the Land Revenue and (fifthly), the plaintiff has a finding in his favour from the Mamlatdar himself as a Magistrate in a trespass case relating to this land. The Collector then said he could not see how all this evidence could be neglected or could fail to prove the plaintiff's possession.
7. Now it has long been recognized that the fact that a person's name is entered as owner or occupier in the books of the Revenue Authorities is not in itself conclusive evidence either of title or possession : see the remarks of Sir Michael Westropp in Fatma kom Nubi Saheb v. Darya Saheb (1873) 10 B.H.C.R. 187 and of Parsons J. in Bhagoji v. Bapuji ILR (1888) 13 Bom, 75.
8. The last piece of evidence which the Collector mentions, namely, that the plaintiff has a finding in his favour from the Mamlatdar himself as Magistrate in a trespass case relating to this land, apparently refers to a statement of the impression left upon the mind of the Magistrate in a criminal case to which the plaintiff was not a party on the record with reference to possession of the land. The case was decided not upon the evidence before the Mamlatdar in the present suit.
9. It appears to us that the Collector in weighing the evidence which was before the Mamlatdar and coming to a different conclusion of fact with reference to the plaintiff's possession upon the evidence upon the record, has assumed the powers of a Court of appeal and not of a Court of revision.
10. The provisions of Clause (2) of Section 23 which give the Collector power to interfere by way of revision when he considers any proceeding, finding or order in a suit to be improper must be . harmonized with the provision in Clause (1), that there shall be no appeal from any order passed by a Mamlatdar.
11. We, therefore, think that the word ' improper' must have j reference to some proceeding, finding or order on the face of it tainted with some impropriety akin to illegality. The legislature which negatived the right of appeal cannot have intended that the Collector should be free to act simply upon a difference of opinion between himself and the Mamlatdar as to the value or probative effect of parts of the evidence recorded by the Mamlatdar. We are not prepared, as at present advised, to hold that the word ' improper' has any different meaning from the word 'irregular' as occurring in the expression 'irregularity' in Section 622 of the Code of 1882, or, Section 115 of the present Code. We are, therefore, of opinion that the Collector was not authorised by Section 23 to interfere with the findings of fact of the Mamlatdar which were on their face legal and regular and arrived at after a consideration of the evidence recorded.
12. For these reasons we set aside the order of the Collector and restore that of the Mamlatdar with costs throughout.
13. The Rs. 100, deposited with the Collector, should be re funded to the applicant.