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Maganchand Fulchand Vs. Vithalrao Kamalrao - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 483 of 1911
Judge
Reported in(1912)14BOMLR793; 17Ind.Cas.148
AppellantMaganchand Fulchand
RespondentVithalrao Kamalrao
Excerpt:
.....of vatan-adverse possession.;the plaintiff came into possession in 1877 of certain deshmuhhi vatan lands by virtue of a mirasi lease and mortgage executed by the grandfather of defendant no. i. the original mortgagor died in 1892. the plaintiff remained in possession for 101/23 years thereafter, when the mortgagor's son applied to the assistant collector to recover possession of the landa on the ground that the lands being deshmuhhi vatan could not be validly alienated beyond the alienor's lifetime. in february 1905, the assistant collector declared the alienation null and void under section 11 of the hereditary offices act, 1874, and ordered the land to be restored to the applicant. the collector confirmed the order on appeal. the plaintiff brought a suit in 1906 to restrain the..........came into possession of a certain land which has been held in the lower courts to be deshmukhi vatan property and which, therefore, could not be alienated validly beyond the life of the alienor. after the death of the first defendant's grand-father, which occurred in 1892, the plaintiff remained in possession for 101/2 years, when the son of the alienor applied to the assistant collector for a decree for possession on the ground that the land was deshmukhi vatan property. he obtained an order from the assistant collector in february 1905 declaring the alienation null and void under section 11 of the hereditary offices act (bombay act iii of 1874) and ordering the land to be restored to the applicant. there was an appeal to the collector from that order but the collector dismissed the.....
Judgment:

Basil Scott, Kt., C.J.

1. The plaintiff by virtue of a Mirasi lease and mortgage executed by the grand-father of the defendant No. 1 in 1877 came into possession of a certain land which has been held in the lower Courts to be Deshmukhi Vatan property and which, therefore, could not be alienated validly beyond the life of the alienor. After the death of the first defendant's grand-father, which occurred in 1892, the plaintiff remained in possession for 101/2 years, when the son of the alienor applied to the Assistant Collector for a decree for possession on the ground that the land was Deshmukhi Vatan property. He obtained an order from the Assistant Collector in February 1905 declaring the alienation null and void under Section 11 of the Hereditary Offices Act (Bombay Act III of 1874) and ordering the land to be restored to the applicant. There was an appeal to the Collector from that order but the Collector dismissed the appeal. The plaintiff has now been in possession of the land adversely to the defendants for upwards of twelve years, and he brings this suit to restrain the defendants by a perpetual injunction from recovering possession of the land mentioned in the plaint.

2. The order of the Collector is referred to in paragraph 3 of the plaint as follows:-

The first defendant has obtained an order from the Collector to the effect that the land in suit may be recovered from the possession of the plaintiff and may be given to the defendant under the Vatan Act. On the authority of the same the defendants are about to take possession from the plaintiff-As to that the said order which they have obtained being contrary to law, the defendants have no right under that order to take away the plaintiff's possession.

3. Now it is contended that this suit is not maintainable by reason of the provisions of the Revenue Jurisdiction Act X of 1876, paragraph IV (a) of which provides, ' No Civil Court shall exercise jurisdiction as to suits to set aside or avoid any order under Bombay Act III of 1874.'

4. The question, therefore, is whether the order challenged as being contrary to law is an order under Bombay Act III of 1874. It is clear that under Section 11 the Collector had authority to declare an alienation contrary to the terms of Vatan Act to be null and void. The validity of that declaration is not however impugned. Section 11A then prescribes what the Collector shall do in order to give effect to his declaration. He can do one of two things. He can either summarily resume possession of the property to which his declaration relates or assess it at the rate prescribed in Clause 2 of Section 9 as he may think fit and the said property shall thenceforth revert to the Vatan. Now he has done neither of these things, but he has purported to authorise the defendants to recover possession from the plaintiff.

5. There is nothing in the Act which authorises him to pass any such order, and the plaintiff, although he may be obliged to yield to summary eviction at the hands of the Collector, is not obliged to submit to proceedings for recovery of possession at the hands of his opponents, the defendants.

6. The order is, therefore, not an order under the Vatan Act, and the Revenue Jurisdiction suit.

7. The learned District Judge was of opinion that, as an application had been made to the Assistant Collector within twelve years from the death of the alienor, adverse possession had not run against the defendants in favour of the plaintiff.

8. We cannot, however, find anything in the Limitation Act to justify such a conclusion. Adverse possession runs in favour of the person in possession and will confer a title upon him unless a suit is brought within twelve years. We, therefore, disagree with the finding of the District Judge upon issues 2 and 5, and the plaintiff being prima facie entitled to the land by virtue of adverse possession is entitled to an injunction against the defendants restraining them from taking proceedings in a Court of law or otherwise than under the Vatan Act to recover possession from the plaintiff. The words ' otherwise than under the Vatan Act ' must be inserted in the injunction in order to make it clear that this Court does not make any order purporting to interfere with or hamper the Collector in the execution of such powers as are given to him by Section 11A of the Vatan Act.

9. The respondents must pay the costs throughout.


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