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Babaji Kondaji Mali Vs. Bala Fakira Mahar - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 294 of 1936
Judge
Reported inAIR1938Bom159; (1938)40BOMLR104; 173Ind.Cas.808
AppellantBabaji Kondaji Mali
RespondentBala Fakira Mahar
Excerpt:
.....code (act v of 1908), section 115-mamlatdars courts, act (bom. ii of 1906), section 23 (2)-collector-revision-mamtatdar's findings of fact-collector reversing findings of fact-whether high court can interfere in revision.; the high court can interfere in revision under section 115 of the civil procedure code, 1908, against the order of the collector, made under section 23 (2) of the mamlatdars' courts act, 1906, setting aside the mamlatdar's order on the ground that he did not agree with the mamlatdar's findings of fact.; kashiram v. rajaram (1911) 13 bom. l. r. 879, hasan malik v. rasul malik (1911) 13 bom. l. r. 879, irbasappa v. basangowda (1919) i.l.r. 44 bom. 595, jagannath v. dhondu (1923) 26 bom. l. r. 265 and maruti v. bankatlal (1933) 35 bom. l. r. 576 referred to. - - ..........115 of the civil procedure code. the applicant made an application to themamlatdar under the mamlatdars' courts act asking for an injunction to restrain the opponents from obstructing him in the possession of certain immoveable property. the mamlatdar held that the applicant was in possession of the property, and that the opponent had obstructed him, and granted an injunction. on an application to the collector under section 23 of the mamlatdars' courts act the collector set aside the order of the mamlatdar, disagreeing with the mamlatdar's findings of fact. now it was laid down by a division bench of this court consisting of sir basil scott and mr. justice rao in kashiram v.rajaram : (1911)13bomlr879 that the collector exercising powers of revision under section 23 of the act is.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an application in revision under Section 115 of the Civil Procedure Code. The applicant made an application to theMamlatdar under the Mamlatdars' Courts Act asking for an injunction to restrain the opponents from obstructing him in the possession of certain immoveable property. The Mamlatdar held that the applicant was in possession of the property, and that the opponent had obstructed him, and granted an injunction. On an application to the Collector under Section 23 of the Mamlatdars' Courts Act the Collector set aside the order of the Mamlatdar, disagreeing with the Mamlatdar's findings of fact. Now it was laid down by a division bench of this Court consisting of Sir Basil Scott and Mr. Justice Rao in Kashiram v.Rajaram : (1911)13BOMLR879 that the Collector exercising powers of revision under Section 23 of the Act is not entitled to exercise the powers of a Court of Appeal, and seeing that under Section 23 (1) there is no right of appeal the Court held that the Collector was not entitled to set aside the Mamlatdar's order merely because he disagreed with the findings of the Mamlatdar who was competent to arrive at those findings. A similar decision was given by another division bench of this Court in Hasan Malik v. RasulMalik : (1913)15BOMLR680 . But in Irbasappa v. Basangowda I.L.R. (1919) Bom.595 : 22 Bom. L.R. 746 a division bench consisting of Sir Norman Macleod and Mr. Justice Heaton laid it down that the Court would not interfere in revision under Section 115 of the Civil Procedure Code unless the party applying to the Court has no other remedy, and that in a case under the Mamlatdars' Courts Act the aggrieved party is entitled to file a suit. Accordingly the Court in that case refused to interfere. No doubt the facts in that case are very similar to the facts in the present case. In a latercase, Jagannath v. Dhondu (1923) 26 Bom. L. R. 265 a division bench consisting of Sir Norman Macleod and Mr. Justice Crump did interfere with an order of the Collector made under Section 23 (2) of the Mamlatdars' Courts Act on the ground that the Collector could only interfere with such an order if he was satisfied that it was illegal or improper, that is to say, the Court in that case followed the decisions of this Court in Kashiram v. Rajaram and Hasan Malik v. Rasul Malik, and did not follow the decision in Irbasappa v. Basangowda. In the year 1932, the question came before Mr. Justice Broomfield in an unreported case, and he considered that on the balance of authority the Court would interfere in cases of this nature, and he pointed out that Sir Norman Macleod, who presided over the Court in Irbasappa v. Basangowda, had also presided over the Court in the later case of Jagannath v. Dhondu. In Maruti v.Bankatlal : AIR1933Bom313 . I distinguished the case of Irbasappa v. Basangowda, but in so doing I expressed approval of the principle there enunciated. However the cases in the opposite sense were not cited to me. It is very undesirable that the practice of the Court in these cases should remain in doubt. It is a hardship on litigants if they do not know whether an application in revision against the order of the Collector under Section 23 (2) of the Mamlatdars' Courts Act will be entertained or not. In my opinion, on the balance of authority it must be taken as settled that the Court will interfere in these cases. It is clear that such a case falls within the terms of Section 115 of the Civil Procedure Code, because the basis of the decisions of this Court has been that the Collector has assumed jurisdiction in appeal, which he does not possess under the Act, and has therefore exercised a jurisdiction not vested in him. The question is one as to the practice of the Court and in my judgment the practice must now be taken as settled in favour of interference in a proper case.

2. In the present case the Collector's order was an order made in appeal and not properly in revision. He set aside the Mamlatdar's order because he did not agree with the Mamlatdar's findings of fact. That, in my opinion), he had no power to do. I must, therefore, set aside the order of the Collector and restore the order of the Mamlatdar. Rule made absolute with costs throughout.


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