MAGANCHAND FULCHAND Vs. VITHALRAO KAMALRAO

JUDGEMENT

(1.) The plaintiff by virtue of a Mirasi lease and mortgage executed by the grand- father of the defendant No. 1 in 1877 came into possession of a certain land which has been held in the lower Courts to be Deshmukhi Vatan property and which, therefore, could not be alienated validly beyond the life of the alienor. After the death of the first defendant s grand-father, which occurred in 1892, the plaintiff remained in possession for 101/2 years, when the son of the alienor applied to the Assistant Collector for a decree for possession on the ground that the land was Deshmukhi Vatan property. He obtained an order from the Assistant Collector in February 1905 declaring the alienation null and void under Section 11 of the Hereditary Offices Act (Bombay Act III of 1874) and ordering the land to be restored to the applicant. There was an appeal to the Collector from that order but the Collector dismissed the appeal. The plaintiff has now been in possession of the land adversely to the defendants for upwards of twelve years, and he brings this suit to restrain the defendants by a perpetual injunction from recovering possession of the land mentioned in the plaint.

(2.) The order of the Collector is referred to in paragraph 3 of the plaint as follows:- The first defendant has obtained an order from the Collector to the effect that the land in suit may be recovered from the possession of the plaintiff and may be given to the defendant under the Vatan Act. On the authority of the same the defendants are about to take possession from the plaintiff-As to that the said order which they have obtained being contrary to law, the defendants have no right under that order to take away the plaintiff s possession.

(3.) Now it is contended that this suit is not maintainable by reason of the provisions of the Revenue Jurisdiction Act X of 1876, paragraph IV (a) of which provides, " No Civil Court shall exercise jurisdiction as to suits to set aside or avoid any order under Bombay Act III of 1874."