APPAJI WAMAN KULKARNI Vs. MOTIRAM SUPDU MAHAR

JUDGEMENT

(1.) This case arises out of a dispute between two brothers. The younger brother, who is the plaintiff, it has been held by the Mamlatdar, was in possession of a certain field. The elder brother (defendant No. 2) conceiving himself entitled to possession of it under a deed of release, Exhibit 1A, authorised defendant No. 1 to take possession of the land, and to dispossess the plaintiff. The Mamlatdar also found that the plaintiff (the younger brother) was in possession within six months of the suit, and that he was dispossessed, not in due course of law, by defendant No. 1 (the elder brother's tenant); and accordingly ordered that possession should be restored to the plaintiff. This order was set aside by the Collector in appeal. He purported to do so in virtue of the explanation to Section 5 of the Mamlatdars Courts Act (Bom. Act II of 1906).

(2.) Section 5 of the Mamlatdars Courts Act provides that a Mamlatdar's Court shall have power to give immediate possession of lands etc. to any person,- (1) who has been dispossessed otherwise than by due course of law, or, (2) who has become entitled to possession or restoration thereof, by reason of the determination of any tenancy, or other right of any other person : not being & person who has been a former owner, or part owner: within a period of twelve years before the institution of the suit of the property, or use claimed.

(3.) There is a proviso which permits the Mamlatdar to refuse to exercise his power. Sub-section (2) of Section 5 gives power to issue an injunction. Sub- section (3) requires the suit to be brought within six months from the date on which the cause of action arose, viz., from the date on which the dispossession or disturbance took place; or on which the title to possession or restoration accrued.