Basapa Bin Murtiapa vs Lakshmapa Bin Maritaraapa on 6 March, 1877

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Bombay High Court
Basapa Bin Murtiapa vs Lakshmapa Bin Maritaraapa on 6 March, 1877
Equivalent citations: (1877) ILR 1 Bom 624
Author: M Westropp
Bench: M Westropp, N Haridas


Michael Westropp, C.J.

1. The special appellant’s learned pleader has raised two points–1st, that, the land in dispute having been decided under Bombay Act V of 1864 by the Mamlatdar to have been in the possession of the special appellant (defendant No. 1, Basapa Murtiapa) under the mortgage bond by the second defendant (Basapa Shivapa) of the 1st June 1863, his decision could not be questioned in the present suit on the title, and in Lingapa v. Irapa (Sp. Ap. 363 of 1870 decided on 18th September 1870), a Mamlatdar’s order, under Act V of 1864, was treated as conclusive evidence of the facts of possession and dispossession. We, however, do not think that we could adopt that view of the law. The case there cited [ex parte Nagova (3 Bom. H.C. Rep. 108, A.C.J.)] does not appear to us to be an authority to that effect. It, in fact, merely decided that a Munsif’s Court had, as well as a Mamlatdar’s Court, jurisdiction to entertain a suit for institution of possession of land, of which the plaintiff had been dispossessed within six months previously to the institution of his suit in the Munsif’s Court. The power, reserved to the Revenue Courts by Section 1, Clause 2, of Act I of 1838, to determine the facts of possession and dispossession, was so reserved merely for the temporary purpose of enabling those Courts to dispose of the immediate possession, which was to continue only until the Civil Court ejected the party put into such immediate possession. Bombay Act V of 1864, which gives to Mamlatdars’ Courts jurisdiction in cases of dispossession within six months from the date of such dispossession, also relates to immediate possession (section 1), and provides that the party to whom such immediate possession is given by the Mamlatdar, or whose possession he shall maintain, shall continue in possession, until ejected by a decree of a Civil Court (section 15). The purpose of this Act, like that of Act XVI of 1838, was temporary only, and, as we think, chiefly to provide for the cultivation of the land and to prevent breaches of the peace until the Civil Court should determine the rights of the disputants. Neither of these Acts gave any appeal against the Mamlatdars’ or Revenue Courts’ decisions, which we thin the Legislature would have permitted if it intended the decisions of the Revenue and Mamlatdars’ Courts as to possession and dispossession to bind the Civil Courts. The proceedings in those Courts were of a very summary character, and it is important to observe that the question of possession is often inextricably mixed up with the question of title, which the Civil Courts only can entertain; or, in other words, the title often depends upon the possession. This is especially so amongst Hindus, where possession is frequently indispensable to title; also amongst Muhammadans where the validity of hibas is concerned; and see such cases as Balaram Nemchand v. Appa Dullu (9 Bom. H.C. Rep., 121), Manmal Dashrath (9 Bom. H.C. Rep., 147) and cases in which the sale or letting has been oral. The second proviso in Section 18 of Bombay Act III of 1876, which enacts that the Mamlatdar’s order is not to be conclusive respecting possession of property or the enjoyment of any use, we regard as introduced pro majori cautela, and not as affording any inference that under Act XVI of 1838, or Bombay Act V of 1864, it was conclusive. Further, neither this point as to the conclusiveness of the Mamlatdar’s order, nor the special appellant’s second point, that the purchase, by the plaintiff, in July 1872 was made with notice of the special appellant’s mortgage of 1863, is taken in the memorandum of special appeal, and there does not seem to have been any good reason for taking the latter point, inasmuch as the District Judge has found that the plaintiff gave the full money value for the property, which it is not probable that he would have done if he were aware of the mortgage. We affirm the decree of the District Judge with costs.

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