Norman Macleod, Kt., C.J.
1. The facts of the case are set out in the referring judgments from which it appears that the plaintiff claiming to be the Vatandar for the time being, asked for possession from the defendant who was a mortgagee from the previous Vatandar, on the ground that the alienation could not hold good beyond the life of the mortgagor. The Collector was of opinion that the alienation was good as against the applicant, and therefore, dismissed the application. The question referred to us is, whether, after the Collector, on an application by a Vatandar to declare that a particular alienation is null and void, has refused to make an order that the alienation is null and void, the party aggrieved can file a suit in a civil Court against the alienee in respect of that alienation. It was decided by a Bench of this Court in Somappa v. Naglingappa (1917) S.A. No. 879 of 1915 (Unreported), that an order or decision by the Revenue Authorities that an alienation which had been challenged was not null- and void, was an order under Section 11 of the Vatan Act, and therefore, a suit to set it aside would not lie under Section 4, Clause (a), of the Bombay Revenue Jurisdiction Act.
2. Again in Madivalappa v. Bhamappa (1918) F.A. 229 (Unreported) there was in the first place an order by the Assistant Collector that a certain alienation of Vatan land which had been challenged was null and void. That order was reversed by the higher Revenue Authorities, the result being, therefore, that there was a decision that the alienation was good. The learned Judges there held that a suit filed for the purpose of challenging the alienation was a suit to set aside or avoid an order which had been made under Section 11 of the Vatan Act, and the jurisdiction of the civil Court was excluded.
3. Then in Madhavrao v. Vmkateah (1919) C.A. 758 (Unreported) which was an application for review of the decision of the Court on the ground that an order of a Revenue Officer under Section 9 of the Vatan Act had been overlooked, and that the suit was in effect to set aside such order, it was held by this Court that at the time the suit was filed there was no order by, a Revenue Officer under Section 9 of, the Vatan Act, for the order which had been passed by the Collector had been set aside by the Commissioner, and there was no order to the effect that the alienation was good.
4. Now Sections 9, 10 and 11 of the Vatan Act have been framed for the purpose of protecting Vatan property against unauthorised alienations. Under Section 9 alienations made before the Act came into force, and without the consent of the Collector, might be declared by the Collector to be null and void, but the Collector has a discretion to uphold an alienation, apparently on the ground that there might be cases where the alienees had been in possession so long that it would be inequitable to disturb them. Section 10 deals with attachments of Vatan property after the Act came into force, and also with alienations to persons who were not Vatandars of the same Vatan. Then by Section 11 when any alienation of the nature described in Section 10 of the Act shall take place otherwise than by virtue of, or in execution of, a decree or order of any British Court, the Collector shall, after recording his reasons in writing, declare such alienation to be null and void.
5. The Collector, therefore, on the plaintiff's application in this case, had the power to declare that the alienation consisting of the mortgage in suit was null and void as against the plaintiff, and it has been conceded for the present appellant that if such an order had been made, it would have been beyond the jurisdiction of this Court to entertain a suit filed for the purpose of setting it aside, although it may be noted that in Bhirnangouda v. The Secretary of State for India (1912) F.A. No. 47 of 1910 (Unreported), it was decided by a Bench of this Court consisting of Scott, C.J. and Batchelor, J., on the 10th of April 1912, that an order made by the Collector that a particular alienation was null and void, when as a matter of fact on the appreciation of the evidence and the law on the subject the alienation was good, would not be an order that could be made under the Vatan Act, and therefore, a suit to set it aside would not be a suit falling within Section 4, Clause (a), of the Bombay Revenue Jurisdiction Act. But conceding that if the Collector had made an order in this case that the alienation was bad, this Court would not have interfered with it, the question arises, whether, as the Collector refused to make any such order and rejected the application of the plaintiff to get possession of the land on the ground that the mortgage was no longer binding on him, there is an order which has to be set aside before the plaintiff can get relief, and that therefore, the jurisdiction of the civil Court is ousted. We think that Section 4 of the Bombay Revenue Jurisdiction Act which ousts the jurisdiction of the civil Courts in particular cases, should be very strictly construed, and that when the Collector on an application for a declaration that an alienation is null and void refuses to make a declaration to that effect, there is no such order against the applicant which prevents his going to a civil Court for the determination of the question whether or not the alienation is binding on him, and that therefore, it is still open to him to ask the Courts to decide that question, and that the Courts would have jurisdiction to decide it. We think, therefore, that the question referred to us should be answered in the affirmative.
6. I agree.
7. I concur. The Collector has been given certain powers under the legislation relating to hereditary offices in Section 6, and for the present purposes Section 10, read with Section 11 of the Vatan Act. The Collector's powers were no doubt given mainly in order to secure that the duties of hereditary officers should be properly performed and it does not seem to me that it was any part of the scheme of the legislation to disentitle Vatandars from also enforcing their private rights in civil Courts. The Collector has power under Section 6 to institute suits to protect a Vatan, but it is not stated, nor in my opinion implied, that this was to bar the right of suit by a Vatandar. Similarly, although the Collector has been given power under Section 10, read with Section 11, to declare an alienation of Vatan property null and void, it does not seem to me that it was intended that, if he should either not be called upon to make such a declaration, or should refuse to make it, the Vatandar should be deprived of his ordinary relief in a civil Court. It seems to me that it was intentionally stated in Section 11 that the Collector shall declare the alienation to be null and void and not that the Collector shall declare whether or no the alienation was null and void. If that is so, the refusal to declare the alienation to be null and void would not be an order under Section 11 of the Vatan Act, and further litigation would not be barred under Section 4, Clause (a) of the third paragraph of the Bombay Revenue Jurisdiction Act X of 1876.
8. I have thought it desirable to state my view upon the subject because I was a party to the decision following the ruling in Somappa, v. Naglingappa (1917) S.A.1915 (Unreported), that is to say, to the decision in Madivalappa v. Bhamappa (1918) F.A. 1915 (Unreported), and also a party to the contrary decision in Madhavrao v. Venkatesh (1919) C.A. 918 (Umreported). It seems to me, after having heard the matter fully re-argued, thaat the later decision was the right one and ought to be affirmed by the Full Bench.
9. After the above decision, the case was again considered by the Court and the following order was passed.
Norman Macleod, Kt., C.J.
10. After the finding of the Full Bench on the question referred to it, the appeal must be allowed, the order of the lower appellate Court set aside, and the case remanded to that Court to be decided on its merits on the footing that the Court has jurisdiction to go into the merits. The appellant to get his costs of the appeal. The costs in the lower appellate Court will be costs in the appeal to that Court.