Maruti Gangaram Satpute Vs. Bankatlal Shivabakas Marwadi - Court Judgment

John Beaumont, Kt., C.J.

1. This is an application in revision in which I am asked to set aside an order of the Collector of Ahmednagar made under Section 23 of the Mamlatdars' Courts Act (Bombay Act II of 1906). The petitioner filed a suit No. 10 of 1931 against the respondent in the Mamlatdar's Court claiming an injunction to restrain the respondent from disturbing the petitioner in possession of the lands in dispute. The Mamlatdar after hearing the evidence gave the injunction asked for. The respondent then applied to the Collector under Section 23 of the Act, and the Collector set aside the Mamlatdar's order on the ground that the Mamlatdar had no jurisdiction in the matter. The learned Collector took a view of the Mamlatdars' Courts Act with which I find myself wholly unable to agree. He held that Sub-section (2) of Section 5 did not justify the issuing of an injunction against a person who had been a former owner of the petitioner's land. Now Section 5, Sub-section (1),. of the Act provides that every Mamlatdar shall, preside over a Court which shall be called a Mamlatdar's Court and which shall, 'subject to the provisions of Sections 6 and 26,' have certain powers. Section 6 gives to the Collector power to transfer suits from a Mamlatdar's Court, and Section 26 limits the jurisdiction of the Mamlatdar by providing that no suit shall lie against Government or in certain specified matters. The powers conferred by Sub-section (1) of Section 5 upon the Mamlatdar are to give immediate possession of any lands and so forth used for agricultural purposes to any person who has been dispossessed or deprived thereof otherwise than by due course of law, or who has become entitled to the possession or restoration thereof by reason of the determination of any tenancy or other right of any other person, not being a person who has been a former owner or part-owner within a period of twelve years before the institution of the suit. It seems to me clear, as matter of construction of that sub-section, that the words 'not being a person who has been a former owner' and so forth qualify only the words 'or other right of any other person,' that is to say, the person referred to in that sentence who has the other right must not be a previous owner. That was the view of the words taken by Mr. Justice Madgavkar in the case of Kisan v. Shripat : (1928)30BOMLR889 . Then Sub-section (2) of Section 5 provides that the said Court shall also 'subject to the same provisions' have certain powers as to injunction. I read those words as meaning simply subject to the provisions of Sections 6 and 26, those being the provisions referred in the previous sub-section. Subject to those provisions the Court is to have power, when any person is otherwise than by due course of law disturbed or obstructed in the possession of any lands or premises used for agriculture and so forth, to issue an injunction to the person causing or who has attempted to cause any disturbance or obstruction. In respect of the person against whom an injunction can be granted, there are no qualifying words such as are contained in Sub-section (1) relating to a person having some other right requiring such person not to have been a former owner. But the learned Collector thinks that such a qualification can be incorporated by reason of the words to which I have referred, 'subject to the same provisions.' As I have said, in my opinion, those words merely refer to the provisions of Sections 6 and 26, and it seems to me quite impossible, as matter of construction of those two sub-sections of Section 5, to say that the person against whom an injunction can be granted under Sub-section (2) must be a person other than a former owner. If that had been the intention of the legislature it would have been easy to say that an injunction was only to be granted against a person not being such former owner or part-owner as aforesaid. But those words are not there. The learned Collector referred to illustration iii as supporting his view. That illustration is not, I think, a very happy one because it does not make it plain whether it is intended to be an illustration under Sub-section (1) or Sub-section (2). It seems to refer partly to both sub-sections. But in any case the illustration cannot, in my opinion, be used to defeat the perfectly plain words of the section. That being so, I think the Collector was wrong in holding that the Mamlatdar had no jurisdiction.

2. I was referred by Mr. Vakil for the respondent to the case of Irbasappa v. Basangowda I.L.R. (1919) Bom. 595 22 Bom. L.R. 746 in which this Court held that an application in revision would not generally be entertained where the parties had another remedy, and since under the Mamlatdars' Courts Act the proceedings are purely summary and the parties can get their ultimate rights determined in a suit, the Court in that case refused to interfere. I do not desire to throw the slightest doubt on the correctness of that decision, or the principle on which it is based. But here the applicant had two rights-either to start a suit or to apply under the Mamlatdars' Courts Act, and the effect of the Collector's order is to deprive him of that second right. In the case of Irbasappa v. Basangowda the Collector had not held that the Mamlatdar had no jurisdiction ; he merely disagreed with the Mamlatdar's appreciation of the evidence, and that being so I entirely agree, if I may respectfully say so, with the view which the Court took that the proper course for the appellant was to start a suit and get his rights determined therein. But here the order of the Collector denied the right of the applicant to go at all to the Mamlatdar's Court, and as I feel confident that the applicant had that right, I think, 1 am bound to interfere. I, therefore, allow the application and direct that the Collector's order be set aside and the Mamlatdar's order restored. The respondent must pay the costs of this application.