1. This case arises out of a dispute between two brothers. The younger brother, who is the plaintiff, it has been held by the Mamlatdar, was in possession of a certain field. The elder brother (defendant No. 2) conceiving himself entitled to possession of it under a deed of release, Exhibit 1A, authorised defendant No. 1 to take possession of the land, and to dispossess the plaintiff. The Mamlatdar also found that the plaintiff (the younger brother) was in possession within six months of the suit, and that he was dispossessed, not in due course of law, by defendant No. 1 (the elder brother's tenant); and accordingly ordered that possession should be restored to the plaintiff. This order was set aside by the Collector in appeal. He purported to do so in virtue of the explanation to Section 5 of the Mamlatdars' Courts Act (Bom. Act II of 1906).
2. Section 5 of the Mamlatdars' Courts Act provides that a Mamlatdar's Court shall have power to give immediate possession of lands etc. to any person,-
(1) who has been dispossessed otherwise than by due course of law, or,
(2) who has become entitled to possession or restoration thereof, by reason of the determination of any tenancy, or other right of any other person : not being & person who has been a former owner, or part owner: within a period of twelve years before the institution of the suit of the property, or use claimed.
3. There is a proviso which permits the Mamlatdar to refuse to exercise his power. Sub-section (2) of Section 5 gives power to issue an injunction. Sub-section (3) requires the suit to be brought within six months from the date on which the cause of action arose, viz., from the date on which the dispossession or disturbance took place; or on which the title to possession or restoration accrued.
4. It is obvious from the facts that I have stated, that on the Mamlatdar's findings the plaintiff was entitled to be restored to possession, unless the defence, based on the explanation to Section 5 (to which I am about to refer), is an answer.
5. The explanation provides that ' The exercise, by a joint owner, of any right which he has over the property, is not a dispossession or disturbance of possession of the other joint owner or owners within the meaning of this section.'
6. The relevant portion of Section 5, with the explanation incorporated in it, may, therefore, be stated as follows: 'The Mamlatdar's Court has power to give possession of lands to any person who has, within sis months of the suit, been dispossessed otherwise than in due course of law unless his dispossession is in the exercise, by a joint owner, of any right which he has over the property.'
7. This makes the question depend upon the rights which joint owners have over the property. And, in order to give its true effect to the section with the explanation, the rights of joint owners must first be determined: those rights, and no others, the explanation safeguards.
8. The explanation has given rise to several cases. In Jina Jibhai v. Mathur : (1921)23BOMLR1016 it was laid down that by the explanation 'any action by one co-owner who has rights over the whole property'- provided of course that ' the action is such as the co-owner has a right to take-although it may interfere with the joint ownership of his co-owner, does not amount to dispossession under the Act, that it is not intended that the ouster by one co-owner of the other amounts to dispossession within the meaning of the Act.' In other words, if one co-owner ousts another co owner (otherwise than in the due course of law), such ouster is merely the exercise by a joint owner of rights which he has over the joint property ; and consequently the Mamlatdar cannot after such an ouster make an order for restoration of possession under Section 5. This is a decision of a Bench of this Court, and is binding upon me. The ousted co-owner there had sought joint possession, which was awarded to him by the Mamlatdar, but the High Court set aside the order for joint possession.
9. In the present case the parties are at variance as to their respective rights. There is no doubt that the elder brother claims that he has become entitled to hold the property, not as a joint owner, but as sole owner, and, so far as the materials before me go, I see nothing to show that his contention is not right. I am however only concerned in this appeal with the questions who was in actual possession, whether that possession was disturbed, not in due course of law, and, whether, if so, the disturbance was protected as being the exercise by a joint owner of any right which he has over the joint property.
10. As the disturbance is sought to be justified under the Explanation to Section 5, the question with reference to the present case is, can the placing of a tenant by a person who claims to be the joint owner of any property be considered as the exercise by a joint owner of any right which he has over the joint property ?
11. This brings me to the decision of Mr. Justice Madgavkar in Kisan v. Shripat : (1928)30BOMLR889 , which seems to have misled the Collector. Mr. Justice Madgavkar in that case emphasises the fact that Section 5 deals with actual possession, and he holds that the explanation refers to possession and dispossesion by the join owners themselves. He concludes that to the obstruction caused by a co-sharer to a tenant in possession (so placed by another co-owner) the Mamlatdars' Courts Act does apply: the Mamlatdar can give relief having the effect of preventing such obstruction by a co-owner to another co-owner's tenant. So that a co-owner's rights over the joint property do not include the right to dispossess the tenant of his co-owner: though they do include the right to dispossess the co-owner himself, under Jina Jibhai v. Mathur.
12. The present is the converse case. I am now assuming the facts as put before me by the respondent. For this purpose I will assume that the respondent may be treated as a co-owner within the terms of the explanation. Here, then, is the tenant of one co-owner who disturbs the possession of another co-owner. To that, according to the authorities, the explanation does not apply. The case in Shiddappa v. Vishnu (1893) P.J. 147 may seem at first to be against this result, But there the tenant was in possession, and some of the co-owners disturbed his possession. It was held that they ought to be restrained from doing so. In the case before me, the co-owner was in possession, and the tenant of another alleged co-owner wishes to disturb his possession. So that, in fact, the case of Shiddappa v. Vishnu supports the view I have intimated.
13. The present case comes nearest to that in Goma v. Naraingrao (1821) Jac. 198, the decision of a full Bench to which Sargent C.J., and Farran and Fulton J J. (a very strong Court) were parties : they hold (they were dealing with Bombay Act III of 1876, which was in similar terms) that the landlord, who has let out his land to tenants, cannot, on the tenants being dispossessed, bring a possessory suit: because the tenants cannot be said to be in possession 'on behalf' of the landlord. So, in the present case, the co-owner (defendant 2) cannot say that the tenant (defendant 1) disturbed the possession of the other co-owner (the plaintiff) on behalf of himself: the disturbance by a co-owner's tenant is not the same as the disturbance by the co-owner himself; the latter is protected, not the former. If the elder brother, defendant 2, himself had taken possession, the question might have arisen between the two co-owners, and then the position might have been similar to that in Jina Jibhai v. Mathur. This is entirely different.
14. It seems to me, therefore, that the Mamlatdar was right in giving possession to the appellant.
15. The rule is made absolute, the order of the Collector is set aside, and the order of the Mamlatdar restored.
16. The parties will bear their own costs throughout.