Venkatesh Keval Shetti vs Bhiku Venkatesh Bhat

Norman Macleod, Kt., C.J.—This appeal was dismissed on a preliminary issue as the learned Judge considered that the case was governed by Article 47 of the Indian Limitation Act and that the suit was out of time.

The plaintiff in 1913 filed a suit in the Mamlatdar''s Court against the defendant for an injunction restraining the defendant from disturbing his possession in the suit land. The plaintiff obtained an injunction in 1913. The defendant applied to the District Deputy Collector in revision and he dismissed the plaintiff''s suit. If that decision could stand, it might be said that it was an order binding upon the plaintiff with regard to the possession of the suit land, so as to come within the first class of the orders which a Mamlatdar can pass on the question, as laid down in the judgment of Mr. Justice Chandavarkar in Tukaram v. Hari (1904) 28 Bom. 601. But it is perfectly clear that the District Deputy Collector had no jurisdiction to interfere with the order of the Mamlatdar and therefore his order should be considered as a nullity. The only effective order with regard to the possession of the suit land was the order in favour of the plaintiff granting him an injunction against the defendant in 1913. The plaintiff then made an application to the First Class Magistrate u/s 145 of the Code of Criminal Procedure and the Magistrate made an order against the plaintiff and in favour of the defendant allowing him possession, at any rate, with regard to the crop of the suit land. The suit is clearly within time with regard to the order of the First Class Magistrate.

We think that the order of the District Judge dismissing the appeal on the preliminary issue is wrong. Therefore this appeal must be allowed and the first appeal sent back to be dealt with by the District Judge on its merits. The appellant must have the costs of this appeal.