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Bombay High Court
Gurushidgavda Bin Rudragavda vs Rudragavdati Kom Dymangavda And … on 7 February, 1877
Equivalent citations: (1877) ILR 1 Bom 531
Author: M Westropp
Bench: M Westropp, N Haridas


JUDGMENT

Michael Westropp, C.J.

1. The Assistant Judge has misunderstood the case of Babaji Hari v. Ralaram Balled (I.L.R. 1 Bom. 75), to which he refers, and the nature of this suit. This suit does not seek to obtain “anything payable on the part of Government in respect of an office,” or even a declaration that the plaintiff is entitled to anything so payable, but seeks a declaration of the plaintiff’s eligibility to officiate as patil of Lokur. Such a suit is not prohibited by Act XXIII of 1871, which, moreover, is an Act that should receive a strict construction as being in derogation of the right of the subject to resort to the ordinary Civil Courts: Ravji Narayan Mandlik v. The Mamlatdar of Ratnagiri (supra, p. 523). It was only so far as the plaintiff in Babaji Hari v. Rajaram Ballal (I.L.R. 1 Bom. 75) sought a declaration that he was entitled to a share in allowances paid from the Government Treasury, that the High Court held that his civil suit was affected by Act XXIII of 1871. That suit was held to be sustainable so far as the inam lands were concerned. The right to officiate as an hereditary officer was not there in litigation. That case, therefore, is wholly inapplicable to the present case, in which the question of the plaintiff’s eligibility to officiate is alone in litigation,–a question which may be the subject of a civil suit: Ningangavda v. Salyangavda, (11 Bom. H.C. Rep. 232). See also the judgment of this Court in the matter of an application for review of judgment, and Babaji v. Nana (infra, p. 535).

2. We reverse the decree of the Assistant Judge and remand the cause for retrial by the District Court on the merits. Costs of this special appeal to abide the result of the cause.


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