LAWS(PVC)-1932-2-119

BAPU APPA MAGDUM Vs. MAHAMMAD IMAM MULLA

Decided On February 12, 1932
BAPU APPA MAGDUM Appellant
V/S
MAHAMMAD IMAM MULLA Respondents

JUDGEMENT

(1.) The plaintiffs, who are the owners of Mulanki service lands, sued the defendants for an injunction restraining the latter from obstructing the plaintiffs in their enjoyment of the suit property. The first Court, the Subordinate Judge at Chikodi, awarded the plaintiffs claim, and this was confirmed on appeal by, the District Judge of Belgaum. The defendants make this second appeal.

(2.) This appeal involves two points of law, first, whether the suit is barred under Section 4 of the Bombay Revenue Jurisdiction Act, (X of 1876), and, secondly, whether it is barred by res judicata. The facts are as follows.

(3.) The holder of the Mulanki lands, Imam, the father of the pre-sent plaintiffs, sold them to the defendants on March 28,1892, and the defendants took possession. Admittedly by the sanad this land is inalienable, and also as a general principle Mulanki land is inalienable, In 1911, during the lifetime of Imam, the present plaintiff, his eldest son, applied to the revenue authorities to be put in possession, and an order for placing him in possession was passed by the Prant Officer, which was confirmed on appeal by the Collector, and possession was taken. On appeal to the Commissioner, the Commissioner held that the laud could not be resumed as long as the persons in possession paid such rent as might be demanded from them by the Collector. But apparently this order was not carried out by restoring possession to the alienees. Subsequently the present defendants brought a suit for an injunction, or in the alternative for possession against Imam and his sons, and obtained a decree. That is suit No. 470 of 1911. But no attempt was made to execute this decree, and apparently the plaintiffs remained in possession. In 1923 the defendants applied to the Commissioner, and he then passed an order to the following effect: The Prant Officer's order, dated May 1, 1911, cannot be upheld as Government have no power to resume service lauds useful to the community and subjected to Summary Settlement under Act XI of 1852 and Bombay Act II of 1863 and alienated to strangers, the only course which can be followed in such cases is to recover full assessment from the strangers to whom the lands have been alienated, and to credit therefrom the judge due to Government and to pay the balance to the officiating muilm Tha Prant Officer's order upheld by the Collector is set said and the Collector is directed to restore the lands back to the alienees and to recover from them full assessment and to pay to the officiating muilas the difference between the assessment and the judi.