NUR MAHOMED BEG MAHOMED Vs. GMONTEATH DISTRICT MAGISTRATE

JUDGEMENT

(1.) This is an appeal from the judgment of the District, Judge of Poona dismissing the plaintiff's suit for an injunction to restrain the District Magistrate from "evicting him from his bungalow. The matter arises under the Cantonments (House- Accommodation) Act, 1923, which is an Act of the Imperial. Legislature, and is not a Bombay Act as is inaccurately stated in the Memo, of Appeal.

(2.) Shortly stated, the plaintiff claims that the Cantonment authorities had no jurisdiction to issue a notice under Sec. 7 of the Act. requiring him to vacate and to execute a lease in favour of the Military Authorities, because under Section 10(c) the house in question is "occupied by the owner," namely, the plaintiff. In the present case two notices were given on the 14 May, Exhibit 25 and Exhibit 26. On June 12, the District Magistrate gave notice in effect that he might be obliged to enforce the surrender of the house under Section 12 of the Act; and on June 14, this suit was filed.

(3.) So far as the merits of the case are concerned, the matter, turned in the Court below on whether the plaintiff could be said to be in occupation as owner, although he was not actually in residence at the time when the notice was given. It was common ground that he had been in actual residence for the Poona Racing Season of 1923, and had not given up his residence until sometime in October 1923. It was further common ground that he actually lived in the house for a day or two in April a May, 1924, and it was alleged by the plaintiff that extensive repairs to the house had been made by him during or up to those months.