BALLAPPA BHIMAPPA Vs. TIPPANGOWDA BASANGOWDA

JUDGEMENT

(1.) The questions in this appeal are, firstly, whether the plaintiffs appellants suit is barred by limitation; and, secondly, whether the defendants respondents have no right of way as the plaintiffs appellants asserted. Both the lower Courts held in favor of the appellants on the second point. In the trial Court no issue of limitation was raised, In the District Court the respondents contended that the plaintiffs suit in respect of the same right of way in the mamlatdar's Court having failed on 1 April 1922, Art. 14, Schedule 2, Lira. Act, applied and the present suit was barred by limitation, being instituted on 1 April 1925. The District Court therefore set aside the decree of the trial Court and dismissed the suit. The plaintiffs appeal. On the question of limitation under Art. 14: To set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for,

(2.) the period of limitation is one year from the date of the Act or order. Under Art. 47: By any person bound by an order respecting the possession of immovable property made under the Criminal Procedure Code of 1898, or the Mamlatdars Courts Act, of 1908, or by any one claiming under such person, to recover the property comprised in such order,

(3.) The period of limitation is three years from the date of the final order in the case. On ordinary principles Art. 47 undoubtedly applies to orders by the mamlatdar respecting possession of immovable property under the Mamlatdars Courts Act. Bombay Act 2 of 1906 expressly constitutes Mamlatdars Courts and defines their powers in Section 5; and, as that section makes it clear, these powers relate in the main to immovable property and include rights of way. It is therefore clear that orders respecting possession of immovable property are governed by Art. 47 and not by Art. 14. It would be difficult to hold that though, while passing the former orders respecting immovable property, the mamlatdar is a Court for the purposes of Art. 47, nevertheless in respect of other orders also Under Section 5, Mamlatdars Courts Act, he ceases to be a Court and becomes an officer of Government for the purposes of Art. 14. On the other hand, while the words" respecting the possession of immovable property" like the words relating to possession" are wider then if the words had been" for the possession of immovable property, the real difficulty if any is caused by the concluding words of Art. 47 -to recover the property comprised in such order." It is clear, therefore that unless the word property is construed in a wide sense and the concluding words are read with the preceding words -respecting the possession of immovable property," it might be argued that while a suit such as the present; denying a right of way over certain land is a suit respecting possession of immovable property, it is not in terms a suit to recover the property, comprised in such order. Therefore, whether as regards Art. 14 or Art. 47, there is a certain amount of difficulty in applying each of these articles, but to my mind the difficulty in the application of Art. 14 is greater, and it would appear that the legislature really meant Art. 47, rather then Art. 14, to apply to orders by mamlatdars respecting immovable property.