KISAN YEMAJI Vs. SHRIPAT TATYA

JUDGEMENT

(1.) The question raised in this application is on the construction of the newly added explanation to Section 5 of the Mamlatdars Courts Act (Bom. Act II of 1906).

(2.) The lands originally belonged to one Magan. He passed a conveyance in favour of Tatya the father of the opponent No. 1 Shripat, The purchaser sued both Magan and his son Sandu for possession on the ground that, the entire survey number had passed to him. He succeeded in the trial Court. Rut in appeal the appellate Court held that Sandy's share had not been transferred, and granted opponent No. 1 a declaration that ho had a half share and was only entitled to joint possession. The opponent No. 1 took no steps to execute the decree or to be placed in joint possession. On May 15, 1927, Sandu placed the applicants plaintiffs in possession under a lease for eleven months as tenants. On June 13, 1927, the opponent No. 1 dispossessed them. The applicants brought the present suit under the Mamlatdar's Courts Act for being re-instated in possession and, succeeded before the Mamlatdar who disbelieved the opponent's defence that he had obtained peaceful possession from Sandu. In revision the Collector up-held the plea not expressly taken before the Mamlatdar and held that the opponent had taken possession as a co-sharer on the strength of his decree, and that he was then fore protected by the explanation to Section 5 of the Maimlatdars Courts Act. The plaintiffs apply in revision.

(3.) The argument for the petitioners is that in the light of the history of the addition of the explanation to Section 5 and on the findings of fact of the Mamlatdar, as the opponent No. 1 had taken the law into his own hands and had dispossessed the, petitioners within six months, the petitioners are entitled to succeed. For the opponent it is contended that as a co-sharer and therefore a part owner within the period of twelve years before the suit, the opponent is protected by Section 5, ill. 1, and if, as held by this Court, a cosharer cannot be placed in joint possession, neither can the tenants of a co sharer such as the present petitioners avail themselves of the Mamlatdars Courts Act. Section 5 does not apply to a co-sharer such as the opponent No. 1 with his right to a share unless within twelve years.