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Antaji Vasudev Kelkar Vs. Vinayak Keshav Bhise - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 948 of 1910
Judge
Reported inAIR1915Bom299; (1915)17BOMLR153
AppellantAntaji Vasudev Kelkar
RespondentVinayak Keshav Bhise
Excerpt:
pensions act (xix of 1871), sections 6, 9-inam-grant of land revenue-suit to recover share of-certificate of collector.;the plaintiffs sued to recover a definite share in an inam which consisted in the enjoyment by the inamdars of 2/3rds of the revenue of a certain village, contending that they were entitled to the portion of the revenue in dispute between them and the defendant. it was contended by the defendant that he was entitled to receive that portion of the revenue from government as a transferee of the inam rights either by the purchase at the court sale or by acquisition through adverse possession. the lower courts held that the suit could be entertained in the absence of a certificate from the collector under section 6 of the pensions act. on appeal by the defendant :-;(1) that..........a grant of land-revenue. therefore it should not be entertained or taken cognizance of without a certificate from the collector that the case may be tried. it has, however, been contended that in relation to a similar suit against the same defendant regarding the inam it was held by a bench of this court that section 9, and not sections 6 and 4, of the pensions act were applicable.3. there, however, were certain admissions from which the court concluded that it was in effect a suit by an acknowledged grantee of the land-revenue against his khatedar as an inferior holder, and therefore fell within the provisions of section 9. we cannot, having regard to the pleadings and contentions of the parties in this suit, take the same view of this case. therefore, we cannot follow the decision in.....
Judgment:

Basil Scott, Kt., C.J.

1. The questions which have been argued in this appeal are questions raised by the defendant-appellant. He contends, first, that the plaintiff's claim is barred by limitation : secondly, that it is barred by the law of res judicata; and, thirdly, that the suit cannot be taken cognizance of by the Court unless a certificate under Section 6 of the Pensions Act is produced. We have heard arguments upon all these points.

2. The first question which logically arises is whether the objection under the Pensions Act is good or not. We are of opinion that it is a good objection. The suit relates to a definite share in an Inam which consisted in the enjoyment by the Inamdars of 2/3rds of the revenue of a certain village. The plaintiff contended that he was entitled to the portion of the revenue in dispute between him and the defendant. The defendant contended that he was entitled, for various reasons, to receive that portion of the revenue from Government as a transferee of the Inam rights either by the purchase at the Court-sale or by acquisition through adverse possession. It is not, therefore, a suit in which one, who is admittedly the grantee of the Government revenue at the time of the institution of the suit, sues to recover from an inferior holder the amount of the revenue payable in respect of his holding, and it does not, therefore, fall under the exception provided by Section 9 of the Pensions Act. In our opinion it is a suit relating to a grant of land-revenue. Therefore it should not be entertained or taken cognizance of without a certificate from the Collector that the case may be tried. It has, however, been contended that in relation to a similar suit against the same defendant regarding the Inam it was held by a Bench of this Court that Section 9, and not Sections 6 and 4, of the Pensions Act were applicable.

3. There, however, were certain admissions from which the Court concluded that it was in effect a suit by an acknowledged grantee of the land-revenue against his Khatedar as an inferior holder, and therefore fell within the provisions of Section 9. We cannot, having regard to the pleadings and contentions of the parties in this suit, take the same view of this case. Therefore, We cannot follow the decision in Antaji v. Kashinath (1904) 6 Bom. L.R. 423.

4. The case has been tried by the lower Courts on the assumption that no certificate is necessary, and, as already observed, the substantial points in the case have been argued in this Court before the question arising under the Pensions Act was taken up. Under the circumstances we think we should follow the procedure which was adopted in Ganpat Rao v. Anand Rao I.L.R. (1905) All. 104, a procedure which was not disapproved of by the Privy Council in the final appeal in that case. The High Court there allowed the hearing of the appeal to be adjourned in order to enable the respondent to procure a certificate, and so avoid the necessity of disposing of the technical question raised in regard to it : Sardar Ganpat Rao Moharkar v. Sardar Anand Rao Baji Sahib : (1910)12BOMLR267 , 273.

5. Although we have come to a definite conclusion upon the other points which have been argued, we do not think that we ought, in view of the words of Sections 4 and 6 of the Pensions Act, to express our opinion upon those questions before receiving a Certificate from the Collector that the case may be tried. We, therefore, adjourn the case for three months in order that the plaintiff may produce to this Court a certificate from the Collector under Section 6 of the Pensions Act.


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