WASUDEV VISHNU DESHPANDE Vs. PANDU VITHU YADAV

JUDGEMENT

(1.) THIS is an appeal from a decree passed by the First Class Subordinate Judge of Satara, dismissing the appellant's suit on the preliminary ground that it is barred under the third paragraph of Section 4 (a) of the Bombay Revenue Jurisdiction Act, 1876.

(2.) THE land in suit, survey No.475, is Deshpande watan land belonging to the appellant's family. THE appellant's father Vishnu mortgaged the middle half of the land with possession to the defendants' ancestor Subhana for Rs. 300 in 1868. Subsequently in 1877 Vishnu passed a miraspatra in favour of the mortgagee in consideration of a premium of Rs. 500 which was made up of Rs, 300 due under the mortgage of 1868 and Rs. 200 paid in cash. THE remaining half portion of the land was subsequently mortgaged by the plaintiff's father to the defendants' ancestors in 1891 for Rs. 1,600, and thus the defendants' family came to be in possession of the entire survey number. Vishnu having died in 1922, and the defendants being strangers to the watan, the plaintiff made an application to the Assistant Collector to have the alienations declared null and void and the land restored to his possession. THE Assistant Collector, after hearing the parties, thought that as the alienation of the middle half of survey No.475 was prior to the passing of the Watan Act, it was in his discretion to order its restoration under Section 9 of the Act, and in his discretion he refused to pass an order of restoration in respect of that portion of the land. But as regards the other half of the survey number, he declared the alienation null and void under Section 11 of the Watan Act; and instead of restoring its possession to the plaintiff, he ordered the defendants to pay full rent to the plaintiff under Section 11-A read with Section 9, Clause (2), of the Act. THE plaintiff thereafter filed this suit to have all the alienations set aside and the entire land restored to his possession. THE lower Court held that the suit was barred under Section 4 (a) of the Bombay Revenue Jurisdiction Act, 1876, and dismissed it.

(3.) PER Curiam. The Court allows the appeal as against respondents Nos. 1 to 6 so far as the alienation of April 11, 1877, is concerned. It records a finding on the first issue that the trial Court has jurisdiction to entertain the suit in respect of the alienation of April 11, 1877, but not in respect of the alienation of June 15, 1891. The decree of the lower Court is set aside and the suit is remanded to the lower Court for further hearing and disposal in accordance with this finding. There will be no order as to the costs of the appeal. .