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Bombay High Court
Faki Ismail vs Umabai Bivalkar on 11 July, 1882
Equivalent citations: (1883) ILR 7 Bom 425
Author: West
Bench: West, N Haridas


JUDGMENT

West, J.

1. There are certain productions of the soil of an estate which, by the Roman law, were regarded as of the character oil fruits or profits, though not falling within the ordinary comprehension of these words. Such were the minerals and stones obtained from pita and quarries–see Digest, Lib. VII, 13, De Verb Sign., 77. Under the modern law, however, Lord Cairns, in a Scotch case, said: “What we call a mineral lease is really, when properly considered, a sale, out and out, of a portion of the land”–Gowan v. Christie L.R. 2 II.L. (Sc.) at p. 284. See also Wilkinson v. Haygarth 16 L.J.Q.B. 103. Similarly, we think that the removal of earth from a rice field is distinctly a taking of a portion of the substance, not merely of a profit, of the land. In the present case, the owner of the fields was undoubtedly in possession until the servants of Umabai came to take away earth for her embankment. He prevented this, and thus retained possession of the whole property, of part of which Umabai’s people had sought to dispossess him. There had thus been only an attempt, well or ill founded, at dispossession, not an actual dispossession. The person asserting the right was not dispossessed, on her own showing, of anything, only prevented from taking it as she had a right to do. On such a complaint a mamlatdar has not jurisdiction.

2. The second clause of Section 4 of the Mamlatdars’ Act is intended to guard against disturbances of the possession which the first clause protects as possession. There was no jurisdiction under that clause.

3. We, therefore, set aside the order made by the mamlatdar with costs.


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