1. The questions in this appeal are, firstly, whether the plaintiffs-appellants' suit is barred by limitation, and, secondly, whether the defendants-respondents have no right of way, as the plaintiffs-appellants asserted. Both the lower Courts held in favour of the appellants on the second point. In the trial Court no issue of limitation was raised. In the District Court the respondents contended that the plaintiffs' suit in respect of the same right of way in the Mamlatdar's Court having failed on April 1, 1922, Article 14 of the second schedule of the Indian Limitation Act applied and the present suit was barred by limitation, being instituted on April 1, 1925. The District Court, therefore, set aside the decree of the trial Court and dismissed the suit. The plaintiffs appeal.
2. On the question of limitation, under Article 14, 'To set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for, the period of limitation is one year from the date of the act or order. Under Article 47, 'By any person bound by an order respecting the possession of immoveable property made under the Code of Criminal Procedure, 1898, or the Mamlatdars' Courts Act, 1906, or by any one claiming under such person, to recover the property comprised in such order', the period of limitation is three years from the date of the final order in the case. On ordinary principles Article 47 undoubtedly applies to orders by the Mamlatdar respecting possession of immoveable property under the Mamlatdars' Courts Act. Bombay Act II of 1906 expressly constitutes Mamlatdars' Courts and defines their powers in Section 5; and as that section makes it clear, these powers relate in the main to immoveable property and include rights of way, It is, therefore, clear that orders respecting possession of immoveable property are governed by Article 47 and not by Article 14. It would be difficult to hold that though while passing the former orders respecting immoveable property, the Mamlatdar is a Court for the purposes of Article 47, nevertheless in respect of other orders also under Section 5 of the Mamlatdars' Courts Act, he ceases to be a Court and becomes an officer of Government for the purposes of Article 14. On the other hand, while the words 'respecting the possession of immoveable property' like the words 'relating to possession' are wider than if the words had been 'for the possession of immoveable property', the real difficulty, if any, is caused by the concluding words of Article 47 'to recover the property comprised in such order'. It is clear, therefore, that unless the word 'property' is construed in a wide sense and the concluding words are read with the preceding words 'respecting the possession of immoveable property', it might be argued that while a suit such as the present denying a right of way over certain land is a suit respecting possession of immoveable property, it is net in terms a suit to recover the property, comprised in such order. Therefore, whether as regards Article 14 or Article 47, there is a certain amount of difficulty in applying each of these articles, but to my mind, the difficulty in the application of Article 14 is greater, and it would appear that the legislature really meant Article 47, rather than Article 14, to apply to orders by Mamlatdars respecting immoveable property. The lower appellate Court has relied on the remarks of West J. in Shivaji Yesji Chawan v. The Collector of Ratnagiri ILR (1886) 11 Bom. 429. That decision, however, has no application to the facts of the present case. The Collector there had passed an order outside his powers and the suit to set aside such order had been held barred by the District Court. This Court held that to the case of public officers acting without jurisdiction, Article 14 had no application. Then, again, ordinarily, to Courts exercising judicial functions Article 14 has no application: Govinda Bala v. Ganu Abaji : (1908)10BOMLR749 . If a Mamlatdar is a Court, even though exercising summary powers, Article 13 would not apply. Again, in Tuljaram v. Bamanji Kharsedji ILR (1894) 19 Bom. 828 it has been laid down that a suit to set aside an order validly passed by a Mamlatdar will not lie though such an order may be superseded by a decree of a civil Court. If so, again Article 14 has no application.
3. On the whole, therefore, I am of opinion that as between Article 14 and Article 47, Article 47, and not Article 14, applies to orders by Mamlatdars under the Mamlatdars' Courts Act, and if so, the present suit is just within limitation.
4. On the second point both the lower Courts have held in favour of the appellants,
5. The appeal is allowed, the decree of the lower appellate Court is set aside and the decree of the trial Court restored. Costs throughout on the respondents other than respondent No. 3 who is dead and against whom the appeal abates.