SHANKAR SADASHIV KULKARNI Vs. MALHAR SHANKAR KULKARNI

JUDGEMENT

(1.) This was a suit brought by the plaintiff for a declaration that he was entitled to receive and enjoy certain haks and babs described in the plaint on the last Lakshmi fair and for Rs. 200 as damages from defendant No, 1 and for an injunction against defendant No. 1 restraining him from receiving the bab mentioned in para, (g) of the plaint.

(2.) The learned Subordinate Judge held that at the last seven fairs it was the varshildar Kulkarni who all along received the plaint haks and babs and that the vahiwat or custom set up by the plaintiff was established. He, therefore, awarded the plaintiff's claim to the extent of Rs. 22 on account of the perquisites unauthorizedly received by defendant No. 1 at the last fair.

(3.) On appeal, the learned Assistant Judge raised an issue which was not raised before the Subordinate Judge as to whether the civil Court had jurisdiction to entertain the suit. The learned Assistant Judge hold that certain payments were to be made to the watandars of the village such as the Patil, Kulkarni, Sutar, Mugdum, Chaulgya, Talwar, Tashildar and Mahar and also the Inamdar as they were dignitories in the village, and that as the payments in kind and cash were not fees attached to the plaintiff's office as Kulkarni and were merely gratuities, he came to the conclusion that the civil Court had no jurisdiction to entertain the suit. It was not contended before the lower Court that the issue ought not to have been raised in appeal, nor was any application made to the District Court that the plaintiff was taken by surprise and that he ought to have been allowed an opportunity to lead any evidence on the new point raised in appeal.