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Dharma Bal Patil Vs. Balamiya Hajimiya - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 522 of 1909
Judge
Reported in(1911)13BOMLR968; 12Ind.Cas.545
AppellantDharma Bal Patil
RespondentBalamiya Hajimiya
Excerpt:
.....act v of 1879), section 56, old rules32,62,63-occupancy-assessment, nou-payment of-forfeiture of occupancy-occupancy given to a stranger under kabulayal restoration of forfeited holdings- collector, powers of.;where an occupancy, forfeited under section 56 of the bombay land revenue code, 1879, for non-payment of assessment, is thereafter disposed of by the collector as provided for by rules 32 and 62, to a person who signs a kabulayat in from b, it is not open to the collector to subsequently order the occupancy to be taken from that person and restore it to the occupant before the forfeiture.;rule 63 empowers a collector to restore a forfeited occupancy to the original occupant. when a forfeited occupancy has been disposed of by grant to a new tenant, it ceases to be a forfeited..........occupancy to be taken from the defendant and given to the plaintiff, who had been the occupant before the forfeiture. the only question before us is, whether the collector had power to do this. his proceedings are supported in argument by reliance on rule no. 63. therefore, the question is whether that rule empowers a collector to do such a thing. agreeing with the first court and differing from the appeal court we hold that it does not. rule 63 empowers a collector to restore a forfeited occupancy to the original occupant. but when a forfeited occupancy has been disposed of by grant to a new occupant, it ceases to be a forfeited occupancy and rule 63 no longer has any application. that rule states the law or a part of the law applicable to lands which are forfeited occupancies; not.....
Judgment:

N.G. Chandavarkar, J.

1. The facts are that an occupancy was first declared forfeited under Section 56 of the Bombay Land Revenue Code, and thereafter it was disposed of by the Collector as provided for by Nos. 32 and 62 of the Rules made under Section 214 of that Code. It was disposed of by giving it into the occupation of the defendant, who signed a 'Kabulayat,' in Form B appended to the Rules. Some years after that, the Collector ordered the same occupancy to be taken from the defendant and given to the plaintiff, who had been the occupant before the forfeiture. The only question before us is, whether the Collector had power to do this. His proceedings are supported in argument by reliance on Rule No. 63. Therefore, the question is whether that rule empowers a Collector to do such a thing. Agreeing with the first Court and differing from the appeal Court we hold that it does not. Rule 63 empowers a Collector to restore a forfeited occupancy to the original occupant. But when a forfeited occupancy has been disposed of by grant to a new occupant, it ceases to be a forfeited occupancy and Rule 63 no longer has any application. That rule states the law or a part of the law applicable to lands which are forfeited occupancies; not the law applicable to those lands which having once been forfeited occupancies have, by disposal according to the Rules, become something different.

2. We allow this appeal, reverse the decree of the lower appellate Court, and restore that of the Court of first instance, with costs both of this appeal and of the appeal to the lower appellate Court on the respondent.


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