MAMLATDAR'S COURTS ACT, 1906

MAMLATDARS' COURTS ACT, 1906

Preamble - THE MAMLATDARS' COURTS ACT, 1906

THE MAMLATDARS' COURTS ACT, 1906[1]

[Act No. 2 of 1906][2]

[29th October, 1906]

PREAMBLE

An Act to consolidate and amend the law relating to the powers and procedure of Mamlatdars? Courts

WHEREAS it is expedient to consolidate and amend the law relating to the powers and procedure of Mamlatdars? Courts; It is hereby enacted as follows : -

NOTES

Scope and Object :- Originally it was restricted to rural areas to give immediate possession of lands, premises, trees etc., as distinguished from urban matters. Jurisdiction was limited to agricultural lands or premises. But due to defective language in the Act it was extended to towns and cities. Heavy work was given to the Mamlatdar and it was under consideration that the burden should be reduced and so Section 5 provides that the jurisdiction of the Mamlatdar should be limited to agricultural lands or premises used for agriculture or grazing.

Section 5(1) deprived the Mamlatdar to eject former owners and tenants who were formerly occupants of the lands before their interest were sold up by the Civil Courts. Therefore, provision made to leave to the Civil Courts, question arising as to the ejectment suits between purchasers and former owners but present tenants of lands. For the purposes of Section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948, according to the Explanation to that section the Mamlatdar?s Court constituted under this Act is a Civil Court.

The Mamlatdar (Tahsildar) has discretion not to exercise his powers under Section 5(1) of this Act.

Mamlatdar?s Court is a Civil Court : - The word ?Civil Court? is not defined in Civil Procedure Code or Criminal Procedure Code or General Clauses Act, though the Courts which are governed by the Bombay Civil Courts Act and the Civil Procedure Code are ordinarily taken to be Civil Courts. It has been held in 38 Cal. 188 that the phrase ?Civil Court? is comprehensive enough to include the Revenue Court deciding rent suits and executing rent decrees.

Though the Civil Procedure Code is held not to be applicable to Mamlatdar?s Court, by a uniform current of decisions, it is laid down that the Mamlatdars? Courts are ?Civil Courts?.

The jurisdiction of Mamlatdar is purely of statutory creation and for his guidance and he must look solely to the terms of the Statute under which he exercises them. -(Gulabbhai v. Kasanji, 1897 P. J. 246).

In Aloo Nathu v. Gagubha, 19 Bom. 608, the High Court held that, the subordinate Judge had concurrent jurisdiction, in the case where a Collector as administrator of the estate of the minor plaintiff instituted a possessory suit before a Mamlatdar, and where a transfer of the suit was applied for, it being urged that the suit must have been brought in the Mamlatdar?s Court as there was no other Court to entertain it.

Section 1 - Short title

(1) ??This Act may be called the Mamlatdars? Courts Act, 1906.

[3] [(2) It shall extend to the whole of the [4] [State of Maharashtra] except the City of Bombay.

[5] [(3) Commencement in rest of State : - In that part of the State of Bombay to which it is extended by the Mamlatdars? Courts (Extension) Act, 1957, it shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint.]

Section 2 - Repeal of Bom. Act III 1876

The Mamlatdars? Courts Act, 1876, is hereby repealed.

Section 3 - Interpretation

In this Act, unless there is anything repugnant in the subject or context, -

[6] [(aa) ?Collector? includes a Deputy Commissioner;]

(a)      the word ?Mamlatdar? shall include any Revenue-Officer exercising for the time being the powers [7] [of a Mamlatdar, of a Mahalkari, or of a Tahsildar or Naib Tahsildar,] and any other person who may be specially authorised by the [8] [[9] [State] Government to exercise the powers of a Mamlatdar under this Act ; and

(b)      the words ?plaintiff? and ?defendant? shall include ?

(i)       a pleader duly appointed to act on behalf of such plaintiff or defendant; and

(ii)      the recognized agent of a plaintiff or defendant as defined in Section 37 of the [10] [Code of Civil Procedure].

NOTES

Mamlatdar :-The word ?mamlatdar? is derived from the Arabic word ?Mu? amala? with the suffix ?dar?. Mu ?amala? means business, a serious, difficult or complicated matter.

The State Government has power to appoint a Tahsildar (Mamlatdar) for each taluka who shall be the chief officer entrusted with the local revenue administration of a taluka. - See Sec. 7 of the Mah. L. R. Code, 1966. The Mamlatdar has to function and perform various duties under Sec. 70 of the Bombay Tenancy and Agricultural Lands Act.

Tahsildar is assisted by Naib-Tahsildar or additional Tahsildar - Sec. 10(b) of M.L.R.C.

?Any other person specially authorised? ?During the continuance of the consolidation proceedings the Consolidation Officer authorised to exercise and discharge the functions of a Revenue Officer under the Mamlatdars? Courts Act, 1906 - see Sec. 26(1) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.

?Plaintiff? and ?defendant? shall include a ?pleader? duly appointed.

Recognised agent as defined in the Code of Civil Procedure : -Under Sec. 122 of the Civil Procedure Code, 1908, Attorney, Advocate, Pleader and one with power of attorney are the recognised agents. Manager of estate is not a recognised agent.

Functions of Mamlatdar (Tahsildar)

(1)     Carrying out all duties of administration under Maharashtra Land Revenue Code, 1966.

(2)     Collection of Revenue at Taluka level to supervise.

(3)     Supervision of crop experiments and paisewari of crops.

(4)     Recovery of arrears of land revenue.

(5)     Supervision and direction on the work of Record of rights and village accounts.

?

(6)     Issuing of certain types of licenses 7 certificates.

(7)     Dafter Inspection of clerks and karkuns, Circle Inspectors, Talathis.

(8)     Deciding disputes under Mamlatdars? Courts Act.

Tahsildar has to perform functions of Executive Magistrate under certain provisions of Cr. P. C., 1973. These powers are administrative or quasi judicial. See also Marine Fishing Regulation Act, 1981.

In Marine Fishing Regulation Act, 1981, specific Tahsildars of Talukas have been given powers to record complaint and make enquiry about disputes between traditional fishermen and certain types of mechanised trawlers which are fishing in the sea-cost of Maharashtra State.

Section 4 - Power to appoint Joint Mamlatdar

(1)     The [11] [[12] [State] Government may, by notification in the [13] [Official Gazette] appoint in any taluka a Joint Mamlatdar under this Act who shall be invested with co-extensive powers and a concurrent jurisdiction with the Mamlatdar, except that he shall dispose of such suits only as he may receive from the Mamlatdar.

(2)     Power of Mamlatdar to transfer suits to the Joint Mamlatdar.- The Mamlatdar is hereby empowered to transfer to the Joint Mamlatdar for disposal any suit under this Act the plaint in which has been presented to the Mamlatdar under Section 7, and to re-transfer to his own file any such suit, of which the Joint Mamlatdar is, owing to death, sickness or any other cause unable to dispose.

(3)     Delegation of powers to Commissioner :- The [14] [[15] [State] Government may delegate [16] [its] powers under sub-section (1) to [17] [any officer not below the rank of Collector].

Section 5 - Powers of Mamlatdars? Courts

(1)     Every Mamlatdar shall preside over a Court, which shall be called a Mamlatdars? Court, and which shall, subject to the provisions of Sections 6 and 26, have power, within such territorial limits as may from time to time be [18] [fixed by the State Government, ]-

(a)      to remove or cause to be removed any impediment, erected otherwise than under due authority of law, to the natural flow in a defined channel or otherwise of any surface water naturally rising in or falling on any land used for agriculture, grazing, trees or crops, on to any adjacent land, where such impediment causes or is likely to cause damage to the land used for such purpose or to any such grazing, trees or crops thereon;

(b)      to give immediate possession] of any lands or premises used for agriculture or grazing, or trees, or crops or fisheries, or to restore the use of water from any well, tank, canal or water-course, whether natural or artificial used for agricultural purposes to any person who has been dispossessed or deprived thereof otherwise than by due course of law, or who has become entitled to the possession or restoration thereof by reason of the determination of any tenancy or other right of any other person, not being a 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, or who is the legal representative of such former owner or part-owner :

Provided that, if in any case the Mamlatdar considers it inequitable or unduly harsh [19] [to remove or cause to be removed any such impediment or,] to give possession of any such property or to restore any such use to a person who has become entitled thereto merely by reason of the determination of any such tenancy or other right, or if it appears to him that such case can be more suitably dealt with by a Civil Court, he may in his discretion refuse to exercise the power aforesaid, but shall record in writing his reasons for such refusal.

(2)     Power to issue injunction.--

The said Court shall also subject to the same provisions, have power within the said limits[20] [where any impediment referred to in sub-section (1) is erected, or an attempt has been made to erect it, or,] when any person is otherwise than by due course of law disturbed or obstructed, or when an attempt has been made so to disturb or obstruct any person, in the possession of any lands or premises used for agriculture or grazing, or trees, or crops, or fisheries, or in the use of water from any well, tank, canal or water-course, whether natural or artificial, used for agricultural purposes, or in the use of roads or customary ways thereto, to issue an injunction to the person [21] [erecting or who has attempted to erect such impediment, or] causing, or who has attempted to cause, such disturbance or obstruction, requiring him to refrain [22] [from erecting or attempting to erect any such impediment or,] from causing or attempting to cause any further such disturbance or obstruction.

(3)     Suits to be filed within six months.--

No suit shall be entertained by a Mamlatdars? Court unless it is brought within six months from the date on which the cause of action arose.

(4)     Cause of action.--

The cause of action shall be deemed to have arisen on the date on which the[23] [impediment] to the natural flow of surface water or the] dispossession, deprivation or determination, of tenancy or other right occurred, or on which the [24] [impediment,] disturbance or obstruction, or the attempted [25] [impediment or] disturbance or obstruction, first commenced.

Explanation. - The exercise by a joint owner of any right which he has over the joint property is not a dispossession, or disturbance of possession of the other joint owner or owners within the meaning of this section.

Illustration I

A lets B his field to cultivate for a specific period of one or more years. B refuses to resign possession after the expiration of that period. A can sue for possession in the Mamlatdar?s Court at any time within 6 months from the date of the expiration of the said period, unless B is a 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 who is the legal representative of such former owner or part-owner.

Illustration II

B is a yearly tenant of A, who gives him a notice to vacate, he is bound to do [26] [in accordance with the law relating to the termination of an annual tenancy] before the end of the then current year of tenancy.] At the commencement of the next year B refuses to vacate. A can sue B in the Mamlatdar?s Court at any time within six months from the commencement of that year, unless B is a 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 who is the legal representative of such former owner or part-owner.

Illustration III

A allows B the use of water from his well, or from his water-course, for a specific period, at the expiration of which B continues to take water from the well or water-course without A?s consent. A may sue B in the Mamlatdar?s Court at any time within six months from the expiration of the said period to obtain an injunction to stop B from taking the water, unless B is a person who has been a former owner or part-owner within a period of twelve years before the institution of the suit of the use of the water, or who is the legal representative of such former owner or part-owner.

Illustration IV

A and B hold lands adjacent to a Pat or Fans or similar artificial water-course which has hitherto been exclusively used by B. A draws water therefrom. B may sue in the Mamlatdar?s Court, at any time within six months from the date on which A commences to take the water, for an injunction to prevent A from so doing.

NOTES

Powers of the Mamlatdars? Courts

Jurisdiction :-The Court is competent to entertain the suit provided other conditions are satisfied. This Court is primarily a Court for the agriculturists. It decides for the time being disputes connected with lands, premises etc., used for agriculture.

Time limit: - The State Government has fixed time limit for six months where all the questions arising prior to the institution of the suit under the Bombay Tenancy and Agricultural Lands Act, 1948. In cases of applications under Sec. 29 of that Act the limit has been raised to two years.

Discretion to refuse to exercise powers:-The proviso to CI. (1)(b) confers a discretion upon the Mamlatdar to refuse to exercise his power in certain cases, but he is required to record his reasons for refusal.

Powers of the Mamlatdars Court: - (1) It has power to give immediate possession of any lands or premises used for agriculture or grazing, or trees or crops or fisheries or to restore the use of water from any well, tank or water-course, whether natural or artificial used for agricultural purposes to any person who has been dispossessed or deprived thereof otherwise than by due course of law.

Mamlatdar has no jurisdiction to pass a decree for the plaintiff when the land in question was in the possession of the tenant of the plaintiff and not in the possession of plaintiff himself.- Krishnaji Waman v. Dhona Motiram, 1895 P. J. 383.

Six months period of application as prescribed by Mamlatdars? Courts Act applicable : -Proceeding instituted under Sec. 101 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 for seeking declaration under sub-sec. (2) of Sec. 100, the period of limitation of six months as prescribed by Mamlatdars? Courts Act will apply. Since an application under Section 100(2) is contemplated for seeking declaration it will have to be decided in each case as to when and in what circumstances the cause of action arose for filing an application and no general rule can be laid down in that behalf. When the cause of action is a recurring one, such a case will not be covered by Sec. 5(4) of the Mamlatdars? Courts Act.- Panpoi Dharmal Sansthan, Dhotarkheda v. Bhagwant s/o Maroti Dhakulkar and others, 1989 Mah. L. J. 710.) This case is under Bombay Tenancy and Agricultural Land Act (Vidarbha Region).

With respect to the proceeding under section 29 of the Tenancy Act carved out in section 71 thereof would not suggest that the period of limitation provided in section 5(3) of the Mamlatdars? Courts Act would be applicable to the proceedings under section 70 r/w section 71 of the Tenancy Act.- Desaibhai Shantabhai Patel v. Bhulabhai Prabhudas Patel, 1994 (2) G.L.H. 1647.

Member or Joint Hindu Family - Obstruction :- A co-sharer or his tenant who has actual sale possession, if disturbed by another co-sharer or his tenant who has taken the law into his own hands is entitled to the summary remedy of this Act.- (Kisan v. Shripat, 30 Bom. L.R. 889).

In Joshi Parshottam v. Joshi Mathbhai, 1896 P. J. 540, the High Court held that, the Mamlatdar has jurisdiction to consider the defendant?s claim to a right or way and to grant an injunction in case of obstruction.

Power of State Government to decide jurisdiction : - The State Government has power to fix the jurisdiction of the Mamlatdar for the purposes of this Act from time to time evidently to enable it to exclude such cities, towns or certain other areas from the jurisdiction of the Mamlatdar.

This Act is not applicable to the City of Bombay.

Lands of Premises used for Agriculture or Grazing Agriculture : - It is an art or science of cultivating the ground, especially in fields including the preparation of the soil, the planting of the seeds, the raising and harvesting of crops, and the rearing, feeding and management of livestock, tillage; husbandary and farming (Amer Cyclopedia).

For definition of Agriculture under Bombay Tenancy and Agricultural Lands Act, 1948, see Sec. 2(1). Whorton?s Law Lexicon adopts the definition of ?agriculture? as including ?horticulture, forestry and the use of land for any purpose of husbandry etc.

Agricultural Produce : - It means all produce of agriculture, horticulture, animal husbandry, agriculture, pisciculture and forest. See Sec. 2(1)(a) of Maharashtra Agricultural Produce Market (Regulation) Act, 1963.

Agriculturist is not defined in this Act, but Bombay Tenancy Act, 1948 defines ?Agriculturist? as a person who cultivates land personally-see Sec. 2(2) of the Bombay Tenancy and Agricultural Lands Act, 1948; see also Sec. 2(1)(b) of the Maharashtra Agricultural Produce Market (Regulation) Act, 1963.

Agricultural and Non-agricultural Distinction : - Agriculture means ploughing, sowing and reaping of some crop or produce for profit. If few trees or flowers grown for pleasure is not agriculture, but in the garden roses etc., are cultivated for the market is certainly agriculture.

Easement: - It could be created and acquired by prescription, by grant or covenant, by statute, under a device and under a custom. Sec. 20 of the Indian Easements Act, 1882.

Easement to graze cattle on common pasture, can be acquired like any other easement. - Sec. 18 of the Indian Easements Act.

Right of Pasturage :- These rights claimed by the villagers are not easements in the proper sense of the word. They are privileges attached to individuals in respect of their lands.- Asrabulla v. Kiamutulla Haji Choudhary, AIR 1937 Cal. 245.

Trees : - Mamlatdar?s jurisdiction - A Mamlatdar can give possession or can issue an injunction in the case of trees situated even in a city or town, provided he has territorial jurisdiction over them.

The owner has right to cut branches of trees belonging to his neighbour, overhanging his land. - (Hare Krishna Joshi v. Shankar Vithal, 19 Bom. 420.

Fruit trees :- Right to go to gather fruits falling on neighbours land is not easement. It is a creation of an express agreement or contract. - Sarangpani v. S. Naidu, AIR 1922 Mad. 398.

Crops :- A crop is considered growing from the time the seed is planted in the ground.

A Mamlatdar (Tahsildar) can give possession of recently cut crops i. e. grain, straw etc.

Private right of fisheries - Private rights of fishery may be either easements or rights in grass according as they are or are not appurtenant to dominant tenement.- C. C. Roy v. S. C. Mupdal, 5 Cal. 945.

Public rights of fishery :- Private rights of fishery can be acquired in India in public waters either by a direct grant from Government or by long user from which a legal origin will be inferred or by custom.- Viresa v. Tatayya, 6 Mad. 467.

Mamlatdar has no jurisdiction to decide the question with sea fisheries.- Reg v. Kastya Rama - 8 Bom. H. C. R. 92.

Water Course - With respect to water flowing in a natural stream, there is no property in running water, but merely a right to use it. Flowing water is a public property.

Beds of rivers, streams, lakes etc., are property of Government - see Sec. 20 of Mah. L. R. Code.

Use of Water :-

(1)     Reasonable use. - A division of water for irrigation is no ordinary use by a riparian owner and so can only be exercised reasonably and with proper regard to the right of other proprietors to apply water to the same purposes.

(2)     Extraordinary use means what is beyond the ordinary, usual or common.

Rights of riparian owners :- Waters of canal and vagrant character following on definite course, cozing through the soil or spreading over the surface. Surface waters are those which, however origination, are shed and passed from lands of one proprietor to those of another without any distinct or well defined channel.

Mamlatdar has no jurisdiction in the matter of easements :- Jaga Valabh v. Dahyabhai, 1896 P. J. 340.

The provisions of the Mamlatdars? Courts Act do not include an easement to a flow of water over the land of another.- Fatambibi v. Bhandari Prema, 1986, P. J. 592.

Use of water from well :- A customary right to use a well may exist apart from a dominant heritage. - Palaniandi Tevar v. Outhrangonda Nandan, (1897) 20 Mad. 389.

Tank :- A right of easement? may be acquired in the surplus water of tank flowing through a defined channel whether natural or artificial. - Rayappan v. Vira Bhadra, (1884) 7 Mad. 530.

Canal :- An artificial water-course, for the passage of botas or larger vessels or for irrigation. (Webster). This word is used in Mamlatdars? Courts Act in the sense of irrigation. See Sec. 2(3) of the Mah. Irrigation Act, 1976.

Sec. 5(2) - Due course of law :- It is not equivalent to ?legally?. According to sec. 145(6)(a) of the Criminal Procedure Code, 1973, the phrase used as an order of Civil Court or a Court acting under statutory authority.

?Dispossession? :- It is essential that the thing should have been submitted to the consideration and pronouncement of the law and the due course of law means the regular normal process and effect of the law operating on a matter which has been laid before it for adjudication.

If a tenant is dispossessed by the landlord after the expiry of the tenancy, though the landlord is entitled to recover it, he cannot dispossess his tenant without having recourse to law. If a tenant is so dispossessed, he is entitled to institute a suit within six months of dispossession under Sec. 9 of the Specific Relief Act. ? (Secretary of State v. Dinshaw, AIR 1925 Sind 275).

Dispossession in due course of law : - Proceedings held under the direct authority of law can be called as dispossession in due course of law e.g., collection of revenue or taxes, recovery of arrears of land revenue etc. See sec. 9 of Specific Relief Act. Sec. 145 and Sec. 146 of the Criminal Procedure Code, 1973, a Magistrate can restore possession of immoveable property to one who was wrongfully dispossessed. Sec. 16 and 36 of the Land Acquisition Act.

Sec. 26 of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 :- Under Sec. 259 of M.L.R. Code, after the sale of any occupancy or alienated holding has been confirmed, the Collector puts the purchaser in possession of the property.

Dispossession of third parties :- The Mamlatdars? Courts Act does not contemplate the case of a third party being ousted, for such an order is only made on a finding that the defendant is in actual physical possession.

Disputes already considered :- The Mamlatdar should not try disputes which have come before some Court of law, such questions should be decided by the Civil Court. The Mamlatdar may refuse to exercise his power under the Act. - Manikchand v. Daji, 1896 P. J. 655, Balu v. Balu. (1899) 1 Bom. L. R. 384.

Mamlatdar?s findings can be relied upon in support of one?s title of ownership.

Lease :- The word lease is applied to all sorts of leases i. e., both to agricultural as well as to non-agricultural lands.

Lease includes a counterpart, Kabulayat, an undertaking to cultivate or occupy and an agreement to lease. See Sec. 2(7) of the Indian Registration Act.

A lease may be made to take effect of future time, and it is on objection that the land is in the meanwhile in the possession of a third person.

Under various Acts, different persons can grant leases. Every person who is not rendered incompetent by some legal disability is capable of being a lessee.

Registration is compulsory if lease is of immovable property from year to year or for any term exceeding one year or reserving a yearly rent. Under Sec. 17(d) of the Indian Registration Act, the State Government, may, by order published in the Official Gazette, exempt from the operation of registration of lease.

Mamlatdar has no jurisdiction to decide where the lease was expired and the plaintiff was entitled to get possession.- Behar v. Rama, 1885 P. J. 454.

Notice to quit :- Object of providing for a notice to quit is to prevent the landlord from turning out the tenant at any moment of his option which would render the position of the latter wholly insecure, and also to enable the tenant to gather up the fruits of his labour.

Notice of termination of tenancy is necessary under Secs. 14, 25 and 31 of the Tenancy Act, 1948.

Service of notice :- In Vithu v. Dhondi, (1890) 15 Bom. 407 the Court held that, even if no issue was raised as to the service of notice the plaintiff was bound to prove such a service although the defendant did not expressly deny service of notice.

Valid Notice :- The notice must designate the date on which the tenant is to vacate.

Six monthly notice is necessary, otherwise it will be invalid notice.-Ramchandra Rao v. Daulatraj, 1888 P. J. 10.

Proper service of notice :- (1) Notice must be properly served by handing over it to the defendant or a member of his house, (2) Service of notice by post (3) Publication of notice in Newspaper.

Mamlatdar has discretion to refuse to exercise his powers under Sec. 5(1) (Proviso) which gives powers in ejection suits.

Discretion :- It means the use of private and independent thought. Discretion is discerning between right and wrong. (Tomlins Dictionary). When anything is left to be done according to law, and the Court has power to redress things that are otherwise done notwithstanding they are left to the discretion of those that do them.

Discretion means sound discretion guided by law. It must be governed by rule and not by humour, it must not by arbitrary, vague and fanciful, but legal and regular.- Ramji Dayawala and Sons (P) Ltd. v. Invest Imports, (1981) 1 SCC 80.

Jurisdiction of Mamlatdar over roads or customary ways. ? Under Sec. 5(2) Mamlatdar has jurisdiction to issue an injunction to the defendant for obstruction. But the Deputy Collector (now Dy. Divisional Officer) has revisional powers against the orders given by the Mamlatdar under Sec. 5.-AnjiMasjid Public Trust v. Ismail, 1964 Mah. L. J. 110.

Powers of Mamlatdar. - Section 5(2) empowers the Mamlatdars to issue orders of injunction and not declarations regarding the customary rights. Proviso to section 5(1) make a reference that Mamlatdar, instead of issuing injunction or directing removal of impediment and obstruction, has powers, for the reasons to be recorded by him, to refuse to interfere in the matter and leave the parties to approach the Civil Court. Mamlatdar cannot certify and thereby declare the rights of parties of customary routes/ways.- Union of India v. Maruti Madhav Kerulkar, 2002 (4) Mah. L. J. 73. (A.B.).

Injunction :- It means an order or judgment of a Court restraining some persons from doing certain things which are detriment to the interest of another or others. - Judicial Dictionary by Iyer.

Under Law of Tort, injunction means an order of a Court of Justice directing the defendant to abstain from the commission, continuance, or repetition of an unlawful act or to do some act which he is legally bound to do.

There are four types of injunctions, (1) Preventive (2) Mandatory (3) Provisional or interlocutory or interim (4) Perpetual.

Mamlatdar cannot grant ?interim injunction?. He can grant injunction in matters connected with agriculture.

The plaintiff is not entitled to get relief by way of injunction when he is not in possession at the time of filing the suit.- Gulabbhai v. Jenabhai, (1888) 13 Bom. 213.

Impediment, attempt :- Impediment is almost synonymous with ?obstruction? except that it is seldom, if ever, used to signify an entire blocking up of the way.

Attempt - It means direct movement towards the commission after the preparations are made. To constitute the offence of attempt there must be an act done with intention of committing that offence.

Attempt and Preparation :-

 n attempt to commit an offence has not been defined in any provision of the Penal Code. It is the stage beyond preparation and it precede the actual commission of the offence.

Limitation :- Under Section 29 of the Indian Limitation Act, 1963, suit must be brought within six months from date on which the cause of action arose.

Section 6 of the Limitation Act which allows time to minors, etc., is not applicable to a Local Act such as the Mamlatdars? Act which prescribes its own period of limitation for instituting a suit.

Explanation :- Explain means make known in detail; make intelligible; account for.

Explanation does not enlarge the scope of the original section that it is supposed to explain.- (AIR 1939 Lahore 587).

Property :- In a genetic term; it means a person can have dominion over. The highest right of man can have to anything. Property is of three sorts. (1) absolute (2) qualified (3) possessory.

As a legal concept, property is the sum of a bundle of rights and in the case of tangible property would include the right of possession, the right to enjoy, the right to destroy, the right to retain, the right to alienate and so on.- Gurudatta Sharma v. State of Bihar, AIR 1961 SC 1684 : (1962) S.C.J. 382.

Joint Property :- It means the property of the members of a joint Hindu Family.

Joint Tenancy :- It has unity of title, unity of commencement of title, unity of interest, so as, in law, to have equal shares in the joint estate, unity of possession, as well of every part as of the whole and right of survivorship.

Tenancy in common :- It has a different concept. There is unity of possession but no unity of title, i.e., the interests are differently held which mean that none of the co-tenant-holders has title over the entire estate. The title varies.

Co-parcener means the persons in joint Hindu Family who are entitled to succeed to the estate of a deceased or who are entitled to demand partition of the joint family property.

To constitute adverse possession as between tenants in common, there must be an exclusion or an ouster.- A. G. Mithare v. V. R. Dhavale, (1933) 36 Bom. L.R. 284.

Illustrations to Section 5 :- Illustrations to section of an Act are examples of application of the principle of the sections to concrete cases; they are instances of the practical application of the law to everyday occurrences.

Illustration III - Beaumont C. J. remarked in Maruthi v. Bankatlal, (1933) 35 Bom. L.R. 576 that it is not a very happy one because it does not make it plain whether it is intended to be an illustration under sub-section (1) or (2). It seems to refer partly to both sub-sections. The illustration could not be used to defeat the perfectly plain words of Section 5(2).

Jurisdiction of Civil Court.- The suit is filed by the plaintiff for removal of encroachment over suit field and thereafter for possession in favour of the plaintiff. The suit property is an agricultural land described in the plaint. The Mamlatdars? Courts Act, 1906 being special enactment, the right to adjudicate dispute under common law is barred. The present suit is admittedly filed under common law. The issue involved in the suit is within exclusive jurisdiction of Mamlatdars? Courts Act.

In this suit the High Court had perused entire Mamlatdars? Courts Act, 1906. The Mamlatdars? Courts Act presupposes and recognizes existence and continuation of powers and jurisdiction of Civil Court. The scheme provides for a summary jurisdiction and powers and a bar of suit to make orders of Mamlatdar or Collector etc. to be immune from scrutiny in a civil suit. The High Court held that exclusion and bar of jurisdiction cannot be read or inferred just for the sake of asking in the manner in which the present petitioner wants. Existence of jurisdiction has to be presumed and not the bar.- Rajendra Sheshrao Shendge v. Smt. Shobhatai S. Ravate and another, AIR 2007 Bom. 90.

Section 6 - Power of Collector to transfer suits

The Collector may, after due notice to the parties, by order in writing transfer any suit from any Mamlatdar?s Court in his district to any other Mamlatdar?s Court in his district, and the Mamlatdar?s Court to which the suit is so transferred shall thereupon exercises jurisdiction in such suit; but any order issued to village officers under Section 21 shall be issued by the Mamlatdar to whom such village-officers are subordinate.

NOTES

The Collector : - In places other than city of Bombay the Chief Officer incharge of the revenue administration of a district - See Sec. 3(11) of Bombay General Clauses Act, 1904. According to Sec. 3(a) Collector includes Deputy Commissioner.

He is the head of a district who is the representative of the State and collects on its behalf the revenues due from the tenants, ryots etc. He is the Chief Authority of the district with regard to all matters connected with the administration of the district.

Collector is different from Government - The State of Bombay v. Mulji Jetha, AIR 1955 SC 325.

Power of the Collector : -

Collector cannot withdraw from or recall any case made over to a Mamlatdar who is subordinate to him and inquire into or try such case himself.

Reasons for transfer of case : -

(1)     A fair and impartial trial or enquiry cannot be had in the said Court. (2) That same question of law of unusual difficulty is likely to arise. (3) That view of the place in dispute may be required for the satisfactory inquiry into or trial of the suit. (4) That an order for transfer will tend to the general convenience of the parties or witnesses. (5) That such an order is expedient for the ends of justice.

Sufficient ground for transfer is necessary : - The fact that there has been some slight disagreement between the Mamlatdar and Pleader conducting a possessory suit for the defendants does not make it necessary for the High Court to transfer the case.- Jibhai Kasam v. Achalbhai Desai, 1896 P. J. 669.

If a Mamlatdar suggested amicable settlement, there is nothing improper in such advice.- Narayan v. Jhaverbhai, 2 Bom. L. R. 613.

In Bhagawandas v. Jedu, 4 Bom. L. R. 97 the High Court held that it has power to transfer a suit from one Mamlatdar to another but not from one district to another district.

Section 7 - Suits commenced by plaint: Contents of plaint

All suits under this Act shall be commenced by a plaint, which shall be presented to the Mamlatdar in open Court by the plaintiff and which shall contain the following particulars : -

(a)      the name, age, religion, caste, profession and place of abode of the plaintiff;

(b)      the name, age, religion, caste, profession and place of abode of the defendant;

[27] [(bb) the nature and situation of the impediment erected and the situation of the lands which are adjacent to each other and the nature of the relief sought;]

(c)      the nature and situation of the property of which possession for use is sought, or the nature of the injunction to be granted, as the case may be;

(d)      the date on which the cause of action arose;

(e)      the circumstances out of which the cause of action arose; and

(f)       a list of the plaintiff?s documents, if any, and of his witnesses, if any, showing what evidence is required from each witness, and whether such witnesses are to be summoned to attend, or whether the plaintiff will produce them on the day and at the place to be fixed under Section 14.

NOTES

Plaint: - The statement in writing of a cause of action in which the relief claimed is sketched in detail.

Even though the dictionary meaning of the word is very wide, it has in legal phraseology come to acquire a more limited meaning and that is a statement in writing of the cause of action in a suit. - S. T. C. of India v. Ironside Ltd., AIR 1966 Bom. 126 (D.B.).

Open Court : - A Court to which all the public have access as a matter of right.

Presentation of plaint when not proper : - There are some principles while presenting the plaint. If plaint is presented by post or left in a box in the Mamlatdars? Office or with any subordinate in the office it is not proper presentation.

Plaintiff : - He is the person presenting a plaint to get a relief from Court; a person who commences an action against another called a defendant.

Contents of the plaint :- The objects of having the details at the outset is to bring the plaintiff to a definite issue so as to facilitate the work of the Court.

While preparing plaint following rules should be observed : -(1) State all materials facts on which you rely for your claim. (2) State facts and not law. (3) State the facts of your case concisely but with precision.

Probate is not necessary while filing suit in the Mamlatdar?s Court.-Bal Itcha Laxmi v. Ghelabhai, 1889 P.J. 215.

Presentation of plaint by the plaintiff is not mandatory but directory. ?Plaintiff and ?Defendant? include recognised agents under Sec. 3(b) - 1965 Mah. L. J. (Notes) 61.

Defendant is the person sued in an action or indicated for a misdemeanor. - (Wharton?s Law Lexicon)

Cause of action means that bundle of essential facts which furnish grounds for going to and asking the help of the Court for redress of the wrong done and which it is necessary for the plaintiff to prove before he can succeed in the case.

The elements of case of action :- There are two types of elements (1) the breach of duty owing by one person to another, (2) the damage resulting to the other from the breach.

Record of Rights : - It is a compilation giving particulars of all private (and some public rights, easements and Government rights), rights over land whether they have been acquired by registered or unregistered documents, by succession, by oral agreements or otherwise or owners, occupants, mortgagees, tenants or assignees or rents or revenue thereof.

Section 8 - Informal petitions to be treated as plaints

Where a petition not in the form of a plaint is presented to the Mamlatdar and the subject matter thereof appears to fall within the scope of Section 5, the Mamlatdar shall explain to the person presenting the petition the nature of the reliefs afforded by this Act and shall inquire whether the petitioner desires to obtain relief thereby. If the petitioner expresses a desire so to obtain relief, the Mamlatdar shall endorse the desire on the petition which shall thereupon be deemed to be a plaint presented under Section. 7.

NOTES

Informal petition to be presented to Mamlatdar himself : - The informal petition referred to in this section must be made to the Mamlatdar by the party himself, i. e., by the plaintiff or his recognised agent or his pleader.

Section 9 - Examination of plaintiff on oath

Where the plaint does not contain the particulars specified in Section 7 or is unnecessarily prolix, the Mamlatdar shall forthwith examine the plaintiff upon oath and ascertain from him such of the particulars specified in Section 7 as are not clearly and correctly stated in the plaint and shall reduce the examination to writing in the form of an endorsement on or annexure to the plaint which shall thereupon be deemed to be part of the plaint. Where the plaintiff requires time to obtain any of the particulars specified in Section 7, the Mamlatdar shall grant him such time as may under all the circumstances appear reasonable.

NOTES

Scope :- This section gives power to the Mamlatdar to examine the plaintiff on oath to get the necessary particulars and if necessary can grant him time.

Oath :- An appeal to GOD to witness the truth of statement.- Wharton?s Law Lexicon.

All oral evidence given by witnesses is on solemn oath or solemn affirmation.

?Oath? shall include affirmation and declaration in the case of persons by law allowed to affirm or declare, instead of swearing - See Section 3(33), Bombay General Clause Act, 1904.

According to Section 6 of the Indian Oaths Act, 1873, oath means where the witness etc., is a Hindu or Mohamedan, or has an objection to making oath, he shall instead of making an oath, makes an affirmation. In every other case he shall make an oath.

Section 10 - Plaint to be subscribed and verified

When the plaint is presented, and has, if necessary, been treated in the manner specified in Section 9, the Mamlatdar shall require the plaintiff to subscribe and verify the plaint in his presence, in open Court, in the manner following, or to the like effect :-

?I, A, B, the plaintiff, do declare that what is stated in this plaint is true to the best of my information and belief.?

Section 11 - Endorsement by Mamlatdar

(1)     The Mamlatdar shall endorse the plaint to the effect that it was duly subscribed and verified.

(2)     Procedure where plaintiff cannot write : - Where the plaintiff cannot write, the verification may be written for him in open Court and he shall affix his mark to his name in token of the authenticity of the verification, and the Mamlatdar shall, in such case, record that the verification was made in his presence at the request of the plaintiff, and that his mark was so affixed.

NOTES

Where a plaintiff is illiterate the verification may be written by another in open Court in the presence of the Mamlatdar and the mark of the plaintiff, generally in the shape of the left hand thumb impression should be obtained on it.

The left hand thumb impression of the illiterate plaintiff has to be taken underneath the verification written by some one for him as evidence of it being true or in accordance with facts.

Section 12 - Rejection of plaint

The Mamlatdar shall reject the plaint, -

(a)      where the plaintiff declines to make a statement on oath under Section 9 ; or

(b)      where the plaintiff is willing to make or has made a statement on oath under Section 9, but fails to furnish the particulars specified in Section 7 within the time fixed under Section 9 or altogether; or

(c)      where it appears upon the face of the plaint,

(i)       that the property or use claimed is not one of the kind specified in Section 5, or

(ii)      that the cause of action arose more than six months before the plaint was presented; or

(d)      where the plaintiff declines to subscribe or verify the plaint as required by Sections 10 and 11.

NOTES

No summary rejection of plaint - The plaint should not be summarily rejected on the ground that cause of action arose more than six months before the plaint was presented.- Lakhapa v. Dhakaya, 1899 P. J. 101.

Section 13 - Return of Plaint

Where it appears to the Mamlatdar that the subject of the plaint is not within his jurisdiction, he shall return the plaint to be presented in the property Court.

NOTES

?Within his jurisdiction? means not only within the territorial limits but also within the legal power of the Mamlatdar as defined by Section 5 of this Act, to hear and determine the cause, the subject of the plaint.

Section 14 - Procedure where plaint admissible

(1)   Where a plaint is admissible, the Mamlatdar shall receive and file it. He shall then fix a convenient day and place for the trial of the case, and shall issue, at the expense of the plaintiff, notice in the form of Schedule A to the defendant. He shall then require the plaintiff to appear with his documents, if any, and witnesses, if any, on the day and at the place fixed.

(2)   The date to be fixed for the trial of the case shall not be earlier than ten days nor later than fifteen days, from the day on which the notice is issued, except for sufficient reason to be recorded in writing by the Mamlatdar with his own hand.

(3)   The place to be fixed for the trial of the case may be in the Mamlatdar?s office or at or near the scene of dispute, or at any other spot that the Mamlatdar considers convenient to the parties.

Section 15 - Attendance of witnesses

(1)     Where either party requires any witness to be summoned to appear on the day and at the place fixed, the Mamlatdar shall issue a summons for that purpose.

(2)     The Mamlatdar may issue, after recording his reasons in writing, a warrant for the arrest of any such witness if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

(3)     The payment of the cost incurred in thus procuring the attendance of witnesses shall be regulated in accordance with the rules that may from time to time be in force in regard to the attendance of witnesses in Subordinate Civil Courts.

NOTES

Witness summons should not be refused :- A party is entitled as of right to summons witnesses. So long as the application is made after the institution of suit, the Court is bound to issue the summonses.

The persons of the Mamlatdar?s office are employed to serve the summons. But plaintiff may be employed for this purpose and paid out of the process fee.- See G. R. No. 4702, Dt. 18.7.1873.

Warrant of arrest of witness :- According to clause (2) of Section 15, Mamlatdar can issue a warrant for the arrest of witness who though duly served fails to appear. But there is no provision under the Act authorising a Mamlatdar to admit a person to bail when brought under arrest, nor is there any provision for making an order for the attachment of his property.

Section 16 - Where plaintiff makes default, plaint to be rejected with costs

(1)     Where the plaintiff fails to attend, or to produce his documents, if any, or to adopt measures to procure the attendance of his witnesses, if any, on the day and at the place fixed, the Mamlatdar shall reject the plaint with costs, whether the defendant appears or not, unless the defendant admits the claim.

(2)     Whether defendant does not appear, case to be heard ex-parte : - Where the plaintiff attends as required by Section 14, sub-section (1), but the defendant fails to attend, and the Mamlatdar is satisfied from the evidence before him that the notice has been duly served on the defendant and in sufficient time to enable the defendant to appear and answer on the day fixed in the notice, he shall proceed to hear and decide the plaint ex-parte.

But case may be reheard on sufficient cause being shown. - Provided, firstly, that if either party satisfies the Mamlatdar at any time within thirty days from the date of the rejection of a plaint under sub-section (1), or of an ex-parte decision under sub-section (2), that he was prevented by some unavoidable circumstance from attending, or from producing his documents or from adopting measures to procure the attendance of his witnesses, as the case may be, it shall be lawful for the Mamlatdar to issue a notice in the form of Schedule B at the expense of the applicant to the opposite party and, if still satisfied after hearing the opposite party that the applicant was prevented as alleged, to rehear the case at such time and place as he may then fix ;

or plaintiff may withdraw his suit. - Provided, secondly, that nothing in the foregoing provisions shall prevent the plaintiff from withdrawing his suit on payment of the defend-ant?s costs.

NOTES

Rejection of plaint :- The Mamlatdar is bound to reject the plaint when the plaintiff makes default under clause (1) of Sec. 16 ?with all costs.? The Mamlatdar is given wide discretion in refusing to exercise his powers under Sec. 5 of this Act.

Service of notice on defendant: - It has been provided in sub-section (2) of this section that the Mamlatdar should satisfy himself that the notice was duly served on the defendant.

If the suit is rejected for plaintiff?s default, new suit on same cause of action is barred.

The applicant has right to make an application for setting aside the ex-parte decision within 30 days from the date of the decision of the final order.- M. R. Vanjari v. V. G. Deshmukh, 1980 Mah. L. J. 275.

The entire structure of Mamlatdars? Courts Act shows that, provisions of C.P.C. are to govern the procedures which are being conducted by Mamlatdars? Court. A specific provision has been made by providing the proviso to section 16 by which the Mamlatdars? Court is empowered to set aside the ex parte judgment and order passed against the opponent if reasonable cause is shown. - Sadashiv Mahadeo Kumbhar v. Balkrishna Bhikaji Walimbe, 2002 (4) Bom. C. R. 346.

Section 17 - When proceedings may be adjourned

(1)     Where, in the case mentioned in sub-section (2) of Section 16, the Mamlatdar is not satisfied from the evidence before him that the notice has been duly served on the defendant, and in sufficient time to enable the defendant to appear and answer on the day fixed in the notice, he shall adjourn the trial of the case and issue a fresh notice under Section 14, sub-section (1), to the defendant.

(2)     Where any witness who has been duly summoned, or for whose arrest a warrant has been issued under sub-section (2) of Section 15, fails to attend on the day and at the place fixed, the Mamlatdar may, if he considers there is sufficient reason, after taking the evidence of those present, adjourned the hearing of the suit from time to time till the attendance of such witness can be enforced.

(3)     The Mamlatdar may, for any other sufficient reason to be recorded in writing, adjourn the trial of the case for such time as he thinks fit, but not ordinarily exceeding ten days.

(4)     The provisions of Sections 15 and 16 shall apply in respect of any day to which the trial of the case may be adjourned under this section, as if such day were the day originally fixed for the trial.

Section 18 - Minor may be a party

(1)     A minor may sue or be sued, if he is represented by a natural or duly appointed guardian.

(2)     Power to add parties.--

The Mamlatdar may at any stage of the proceedings, order that the name of any person to whom possession or enjoyment of the property or use claimed, or of any part thereof, may have been transferred, or the addition of whom as a party appears necessary in order to enable the Court effectually and completely to adjudicate upon the issues, be added as a plaintiff or defendant, as the circumstances of the case may require :

Provided that, no person shall be added as a plaintiff without his consent :

Provided also that in respect of any person so added, not being a transferee pending the suit, the suit shall for the purposes of Section 5, sub-section (3), be deemed to have been instituted on the day when his name was so added.

(3)     Procedure in case of death of party.--

In case of the death of any party, while the suit is pending, -

(i)       if application is made within one month of such death, the Mamlatdar shall determine summarily who is the legal representative of the deceased party and shall enter on the record the name of such representative;

(ii)      if no such application is made, the suit shall abate.

(4)     Where the Mamlatdar orders the name of any person to be added as a defendant or enters on the record the name of any person as the legal representative of a deceased defendant, the Mamlatdar shall issue to such person a notice as provided in Section 14; and the trial shall proceed on the date fixed in such notice.

NOTES

Minor : - It means a person who has not attained the age of 18 years.- See also Sec. 3 of the Indian Majority Act, 1875.

Minor may be a party : -According to the provisions of Sec. 18(1) a minor can sue and be sued under the usual conditions as a minor cannot make oath.

Minor cannot claim facility for extension of Limitation, see Sec. 29 of Indian Limitation Act, 1963.

In case of a suit by or against a minor, the minor must be named as a plaintiff or defendant. If by an error the guardian and not the minor is named as the party suing or being sued, the mistake cannot be corrected after limitation for the suit has expired.

Legal representative : -It means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased, and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued - Section 2(ii), C.P.C.

If a person who had not sued as a representative capacity would not take away his right to be substituted as legal representative.- P. S. Kono Anal v. State of Manipur, (1985) 2 Civil L. J. 288.

If the applicant dies while revision petitioner before Collector is pending the revision does not abate. Legal representative can be brought on record even after the lapse of 30 days.- Hafasji Ibrahim v. Mangalgiri Mathuragiri, (1945) 47 Bom. L. R. 845 : AIR 1946 Bom. 201.

Provision of section 5 of the Limitation Act can be invoked for condonation of delay in setting aside abatement under sec. 18(3) of the Mamlatdars? Courts Act :- The dispute was between the tenant and the landlord, the petitioners in both the petitions were the tenants and respondents were the landlord. In both the proceedings there were number of orders right from the initial order passed by the Naib-Tahsildar to the orders of remands in appeal.

It was contended that there is no provision in the Mamlatdars? Courts Act for setting aside abatement on the application of the legal heirs of the petitioner. The High Court while deciding this appeal expresses its views that, section 5 of the Limitation Act provides that, any appeal or application other than an application in any appeal of the revision under Order 29 of the Civil Procedure Code may be admitted after the prescribed period. Section 5 includes only the application under Order 29 of the Civil Procedure Code, so it is not correct to say that, section 5 of the Limitation Act will not be applicable to the proceedings before the Mamlatdar?s Court. The High Court held that, Dy. Collector was justified in setting aside the abatement. The matter was remanded back to Tahsildar to record evidence of the landlord.- Shankar Datta Dhangar v. Dhondopant Narayan Kulkarni, 1998 (3) Mah. L. J. 371 : (1998) Vol. 100 (3) Bom. L.R. 672.

Section 19 - Points to be decided by Mamlatdar at hearing

(1)     On the day fixed, or on any day to which the proceedings may have been adjourned, the Mamlatdar shall, subject to the provisions of Section 16, proceed to hear all the evidence that is then and there before him, [28] [and to try the following issues, namely : -

(aa) If the plaintiff avers that the natural flow of surface water from his land has been impeded by any erection raised by the defendant causing damage or likelihood of damage to the plaintiff?s land or to any grazing, trees or crops thereon -

(1)     whether surface water flowed, in a defined channel or otherwise, naturally from plaintiff?s land on to defendant?s land ;

(2)     whether the defendant erected any impediment to such flow, otherwise than under due authority of law;

(3)     whether such erection impeded such natural flow of water within six months before the suit was filed;

(4)     whether such impediment has caused or is likely to cause damage to plaintiff?s land or to any grazing, trees or crops thereon;]

(a) ???If the plaintiff avers that he has been unlawfully dispossessed of any property or deprived of any use, -

(1)     whether the plaintiff or any person on his behalf or through whom he claims was in possession or enjoyment of the property or use claimed up to any time within six months before the suit was filed ;

(2)     whether the defendant is in possession at the time of the suit, and, if so, whether he obtained possession otherwise than by due course of law;

(b) ??if the plaintiff avers that he is entitled to possession of any property or restoration of any use by reason of the determination of any tenure or other right of the defendant in respect thereof -

(1)     whether the defendant is in possession of the property or in the enjoyment of the use by a right derived from the plaintiff or from any person through whom he claims ;

(2)     whether such right has determined at any time within six months before the suit was filed;

(3)     whether the defendant is other than a 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, and other than the legal representative of such former owner or part-owner;

(c) ???if the plaintiff avers that he is still in possession of the property or in the enjoyment of the use, but that the defendant disturbs or obstructs or has attempted to disturb or obstruct him in his possession or use ?

(1)     whether the plaintiff or any person in his behalf is actually in possession or enjoyment of the property or use claimed ;

(2)     whether the defendant is disturbing or obstructing, or has attempted to disturb or obstruct him, in such possession or enjoyment ;

(3)     whether such disturbance or obstruction, or such attempted disturbance or obstruction, first commenced within six months before the suit was filed.

(2) ??Power of Mamlatdar to examine other witnesses and inspect property in dispute.--

The Mamlatdar may, after due notice to, and in the presence of, the parties summon and examine as a witness any person who has not been summoned or produced, and may call for and cause to be proved any document which has not been applied for or produced, by either of the parties, where he considers it expedient in the interests of justice so to do, and may, if he thinks fit, make a personal inspection of the property in dispute in the presence of, or after due notice to, the parties.

[29] [He shall without unnecessary delay record a memorandum after hearing the parties on the spot, if present, of any relevant facts observed at such inspection. The memorandum shall form part of the record of the case.]

(3) ??Record of proceedings by Mamlatdar.--

The Mamlatdar shall with his own hand make or sign a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds, and briefly record his reasons for his finding.

(4) ??Orders to be passed by Mamlatdar upon decisions in favour of plaintiff and defendant.--

Where the Mamlatdar?s finding upon the issues is in favour of the plaintiff, he shall make such order, not being in excess of the powers vested in him by Section 5, as the circumstances of the case appear to him to require; and where his finding is in favour of the defendant, he shall dismiss the suit. In either case the costs of the suit, including the costs of execution, shall follow the decision.

NOTES

Points to be decided by Mamlatdar : - One general form has been framed too meet every case with which the Mamlatdar may have to deal.

Under the provisions of clause (2) of Sec. 19 enable the Mamlatdar to make personal inspection and to examine any person as a witness although not summoned or produced on either side.

Compromise : - It means an adjustment between the parties to a dispute ending in a settlement.

One of the meanings of compromise is Arbitration.

A compromise is always bilateral and means a mutual adjustment.- Kunjilal v. Nathmal, AIR 1957 M. B. 14.

Payment of the costs of defendant : - Even if the plaintiff has stated that the matter has been compromised and that the plaint should be dismissed and he was willing to bear his own costs under the provisions of the Act the plaintiff has to pay the costs of the defendant.

To hear all the evidence : - The Mamlatdar has to hear and record all the evidence while giving speedy decision. He is to pass without delay an order which should not be in excess of the powers vested in him by Sec. 5.

Issuing injunction : - Injunction is a judicial process by which one who has invaded or is threatening to invade the right, legal or equitable, of another, is restrained from continuing or commencing such wrongful acts.

Evidence of possession : - The marks of possession with regard to property depend on the nature of the property.

User but not legal possession : - (1) Tethering cattle, (2) using the land for throwing refuse, (3) keeping fodder, grain and earth, (4) erection of temporary ?Ottas? or sheds for cows, goats and fowls, these are the examples of to be evidence of mere user not amounting to legal possession.

Mamlatdar bound to take evidence of plaintiff : - A Mamlatdar though he formed an impression from the examination of the parties unfavourable to the claim of the plaintiff to an injunction, is bound to take evidence offered by him as to the actual user and the nature and extent of the obstruction to it caused by the defendant.- Keshav v. Damodar, 1887 P. J. 46.

High Court can interfere if a Revenue Officer presides over a Mamlatdar?s Court and violate the provisions of law and the Collector neglecting the non-compliance of the provisions of law treates the application before him as a revenue appeal.- Kanji Hirji Narain v. Patel Bharmal, AIR 1954 Kutch 47.

Section 20 - Mamlatdar?s order to be endorsed on plaint and read out in open Court

Every order of the Mamlatdar, whether for rejecting or returning a plaint or whether for allowing or disallowing a claim, shall be endorsed by the Mamlatdar on the plaint and shall be read out by him in open Court, either at once or on some future day of which due notice shall be given to the parties or their pleaders, and brief reasons for the order shall be placed by him on record.

NOTES

Obligation on Mamlatdar to give due notice :- By virtue of section 20 of the Mamlatdars? Courts Act, 1906 it is obligatory on the Mamlatdar to give due notice of the decision to the person who was not present before him during the proceedings, or, for the matter on the day when the decision was pronounced.- Dr. Sharadchandra Malharrao Ajinkya since deceased through legal representatives v. Markus Philips Mendosa, 2004 Vol. 106(2) Bom. L.R. 743.

Section 21 - Mamlatdar?s decision how executed

(1)     Where the Mamlatdar?s decision is for [30] [removal of an impediment or for] awarding possession or restoring a use, he shall give effect thereto by issuing such orders to the village-officers, or to any subordinate under his control or otherwise as he thinks fit :

Proviso as to growing crops.--

Provided that, notwithstanding anything contained in this Act, where at the time when a decision is recorded by the Mamlatdar for [31] [removal of the impediment erected on any land or for] awarding possession of any land, there is a crop on such land which has been sown by, or at the expense of, the defendant, and the Mamlatdar is satisfied that it has been so sown in good faith, the Mamlatdar may, and if the defendant makes an application for the purpose and furnishes sufficient security, or deposits in Court a sufficient sum, for the payment of the costs of the suit, shall pass an order staying delivery of possession of such land to the plaintiff seeking possession thereof, either -

(a)      until the plaintiff agrees to take the crop at a valuation, to be made under the orders of the Mamlatdar according to the value of the crop at such time, including any instalments of the Government assessment which the defendant may have paid for the current year ; or

(b)      where the plaintiff is unwilling to take the crop at such valuation until after the expiration of sufficient time for the crop to be gathered by the defendant.

The amount of any valuation made under clause (a) of the proviso to this sub-section shall be paid to the defendant through the Mamlatdar, and shall be recoverable from the plaintiff as an arrear of land revenue.

(2)     Mode of serving injunction.--

Whether the Mamlatdar?s decision is for granting an injunction, he shall cause the same to be [32] [prepared in the form of Schedule BB or C, as the case may be,] and shall deliver or tender the same then and there to the defendant, if present, or if the defendant is not present, shall send it to the village-officers, or to any subordinate under his control, to be served upon the defendant.

(3)     Recovery of costs awarded.--

Where the Mamlatdar awards costs, such costs, together with the costs of execution, shall be recoverable from the party ordered to pay them as an arrear of land revenue.

(4)     Disobedience to an injunction how punishable.--

Any person disobeying an injunction granted under sub-section (2) shall be punishable under Section 188 of the [33] [Indian Penal Code].

NOTES

Execution of Mamlatdar?s decision :- The Act enables Mamlatdars to entrust the work of carrying out their orders to subordinate officers under their control. They are further authorised to use their discretion in getting their orders executed in any way suitable to circumstances. They may issue orders to police officers or direct private gentlemen to render them assistance in these matters.

Decree is the final order of the Court in a suit. The test is, the order must conclusively determine rights of parties. 41 Cal. 160.

The execution of Mamlatdar?s decree is not subject to Limitation.-Balajaji v. Kushaba, 30 Bom. 415.

A vakalatnama remains in force until all proceedings in the suit are ended.- Sadashiv Ganpatrao v. Vithaldas Nanchand, 49 Bom. L.R. 746.

The Mamlatdar can supervise execution of his decree.- Rakhma v. Tulaji, 19 Bom. 675.

The Mamlatdar may use force to eject the person against whom the order has been passed to give effect to his decision.- Baji Deo v. Sadashiv Bhai Shankar, 5 Bom. H.C.R. 158.

Mamlatdar has power to recover costs awarded by the High Court.-Nemava v. Devendrappa, (1891) 16 Bom. 238.

Eviction order can be executed at any time.- The respondent, the owner of the property issued a notice to the appellant to vacate the land in question. The order of eviction became final with the confirmation of the order by this Court in a special leave petition. Thereafter proceedings were initiated for execution. An objection has been raised on the ground that since more than 12 years have been elapsed, the order cannot be implemented. The High Court pointed out that under sec. 21 of the Act, it has not been prescribed any limitation for execution of the orders. The Supreme Court also upheld the decision of the High Court and decided that, in the absence of any specific limitation provided in the Act, necessary implication is that the general law of limitation provided in Limitation Act stands excluded. No limitation has been prescribed and it can be executed at any time. Where there is statutory rule operating in the field, the implied power of exercise of the right within reasonable limitation does not arise.- Uttam Namdeo Mahale v. VithalDeo, AIR 1997 SC 2695 : 1998 (1) Bom. C.R. 786.

Execution of eviction order : In statutory scheme as per section 73 of the Bombay Tenancy Act and section 21 of the Mamlatdars? Courts Act there is no limitation prescribed for execution of an order passed by the Tribunal or Mamlatdar. As held in the case of Uttam Namdeo Mahale v. Vithal Deo, (see ibid.) where there is statutory rule operating in the field, implied power of exercise of right within reasonable limitation does not arise.- Madhukar Damodar Pawar v. Madan PurushottamPaudkar, 2003 (3) Bom. C. R. 291.

It is the duty of the Village Officer to give effect to the order as baseless and no limitation is prescribed therefore the Limitation Act is not at all attracted. Perusal of section 21 of the Act clearly reveals that the said section use word shall and that the Tahasildar executing the order of possession is left with no discretion but to issue appropriate order of restoration of possession to his subordinates and no limitation is prescribed thereof. Rajnikant Harlal Shah v. Rafiulla Beg Ismail Beg and others, 2005 (2) Bom. C.R. 764.

Section 22 - Possession to be given without prejudice to rights of parties

[34] [Subject to the provisions of Section 23, sub-section (2), the party in favour of whom the Mamlatdar issues an order for removal of an impediment or the party to whom, the Mamlatdar gives possession or restores a use, or in whose favour an injunction is granted, shall continue to have the surface water upon his land flow unimpeded on to adjacent land or continue in possession or use, as the case may be, until otherwise decreed or ordered, or until ousted, by a competent Civil Court] :

Provided, firstly, that nothing in this section shall prevent the party against whom the Mamlatdar?s decision is passed from recovering by a suit in a competent Civil Court mesne profits for the time he has been kept out of possession of any property or out of enjoyment of any use :

Provided, secondly, that in any subsequent suit or other proceeding in any Civil Court between the same parties, or other persons claiming under them the Mamlatdar?s decision respecting the possession of any property or the enjoyment of any use or respecting the title to or valuation of any crop dealt with under the proviso to sub-section (1) of Section 21, shall not be held to. be conclusive.

Section 23 - Bar of appeal

(1)     There shall be no appeal from any order passed by a Mamlatdar under this Act.

(2)     Collector?s power to revise Mamlatdar?s proceedings.--

But the Collector may call for and examine the record of any suit under this Act, and if he considers that any proceeding, finding or order in such suit is illegal or improper, may, after due notice to the parties, pass such order thereon, not inconsistent with this Act, as he thinks fit.

[35] [(2A) Delegation to Collector?s powers.--

The Collector may delegate the powers conferred on him by this section to any [Assistant Collector Deputy Collector, or Assistant Commissioner] subordinate to him;]

(3)     Collector deemed to be a Court.--

Where the Collector, [36] [Assistant Collector, Deputy Collector or Assistant Commissioner] takes any proceedings under this Act he shall be deemed to be a Court, under this Act.

NOTES

Power of Collector to revise Mamlatdar?s proceedings :- The Collector, the Assistant or Dy. Collector or Assistant Commissioner is to pass orders in revision after due notice to the parties. But it need not refer the matter to the High Court provided in Sec. 438 of Criminal Procedure Code, 1973.

Collector not an Appellate Court :- Deputy Collector cannot give himself jurisdiction by saying that the order appealed against is illegal or improper.- Hasan Malik v. Rasul Malik, 15 Bom. L. R. 630.

Limitation of period :- There is no period prescribed by law within which an application for revision should be made to the Collector, but as per practice of High Court regarding Criminal revision petitions Collector should entertain revision application if made within 60 days from the date of order complained against. Collector cannot pass by any further order after once ordering that Mamlatdar should proceed with the case. Rasul Musa Mafat v. Asman Musu Dadi, 22 Bom. L. R. 1311.

High Court has jurisdiction of superintendence and revision to exercise over the Mamlatdars? Courts. Bai Jamna v. Bai Jadhav, 4 Bom. 168.

Collector as a Court under the Mamlatdars? Courts Act is subordinate to the High Court. According to the provisions of Sec. 3 of the Civil Procedure Code some Courts are subordinate to the High Court. Purshottam v. Mahadu, 14 Bom. L. R. 947.

Collector has power to examine the record of any suit and it may call for an application by a party to the suit under the provisions of Sec. 23(2) of the Act. High Court has overriding revisional powers over Collector. Sanjay v. Shankerappa, 1971 Mah. L. J. 478 : AIR 1971 Bom. 302.

Revisional powers of Collector : - In a revision application where the power to revise prescribes that the revisional Court may consider the question of legality and propriety of a finding of the lower Court, as in the case under Section 23, the revisional Court can only go into questions of law, unless a finding of fact is manifestly perverse or unreasonable. - Syed Mahaboob Raju v. Habibsha, 1968 Mah. L. J. 494 : 70 Bom. L. R. 252.

Challenged to injunction.- In the instant case the High Court held that the relief of injunction is an ancillary relief to the main relief. When the main relief granted in an order has gone unchallenged, it is futile to challenged ancillary or consequential order.- Smt. Vidya Vijay Karandikar & Anr. v. State of Mah. & Ors., 2006 (6) All M.R. 542.

Section 24 - [Omitted]

[Powers of the Court of the Judicial Commissioner of Sind]. Omitted by the Adaptation of Laws Order, 1950.

Section 25 - Punishment for verification of false plaint

Any plaintiff?s subscribing and verifying any plaint under this Act which he either knows or believes to be false, or does not believe to be true, in any material point, shall be deemed to have committed an offence punishable under Section 193 of the Indian Penal Code.[37]

NOTES

Verification of false point. - The Mamlatdar?s endorsement as prescribed by Sec. 11 of this Act will be prima facie proof of the due subscription and verification.

?Believe? is a very much stronger word than ?suspect? and it involves the necessity of showing that the circumstances were such that a reasonable man must have felt in his mind that any material point in the plaint is false.

Section 26 - Bar of certain suits

No suit shall lie under this Act,-

(a)      [38] [against Government or against any Government Officer] in respect of any act done or purporting to be done by any such officer in his official capacity, except where acting as a manager or guardian duly constituted under any law for the time being in force ; or

(b)      in respect of [39] [any removal of any impediment or of] any dispossession, recovery of possession or disturbance of possession, that has been the subject of previous proceedings, to which the plaintiff or his predecessor in interest was a party, under this Act, or in a Civil Court or under Chapter XII of the Code of Criminal Procedure, 1898.

NOTES

Bar of certain suits :- Under the Mamlatdars?Courts Act, the pendency of a civil proceeding instituted previously in a Court would be a bar to the exercise of jurisdiction by the Mamlatdar.

Suit against the Government, or Government Officers shall be entertained by the Civil Judge (Senior Division and not by the Small Causes Court.- See Sec. 32 of the Bombay Civil Courts Act, 1869.

Section 27 - Repeals and savings

[40] [[41] [On the commencement of this Act in that part of the State of Bombay to which it is extended by the Mamlatdars? Courts (Extension) Act, 1957, the Saurashtra Mamlatdars? Courts Ordinance, 1948, and the Mamlatdar?s Courts Act, 1906, as modified and extended to the Kutch area of the State of Bombay, shall, from such commencement in that part, stand repealed :

Provided that notwithstanding any such repeal, anything done or action taken (including any appointments made, any Mamlatdars? Courts constituted, territorial limits thereof fixed, orders made by such Courts, proceedings pending before such Courts or before the Collector or other authority, and delegations made by the Government or the Collector) by or under the provisions of the laws so repealed shall, in so far as such thing done or action taken is not inconsistent with the provisions of this Act, be deemed to be done, taken appointed, constituted, fixed, pending, or made under the provisions of this Act as if this Act had then been in force; and accordingly, all such proceedings pending before any such Court or Collector or other authority shall be continued and disposed of in accordance with the provisions of this Act.]

Schedule - SCHEDULE A

SCHEDULE A

Form of Notice to be issued to the Defendant under Section 14

(Seal of the Court)

No. of Suit

In the Court of the Mamlatdar of

??. plaintiff;

?.. Defendant,

TO DEFENDANT. - (Name, age, religion, caste, profession and place of abode).

WHEREAS (here enter the name, age, religion, caste, profession and place of abode of the plaintiff) has instituted a suit in this Court against you (here state the particulars of the plaint) :

You are hereby summoned to appear in this Court at the Village of ??.. in person or by duly authorised agent on the????????. day of ???. at o?clock ???? m., to answer the above named plaintiff; and as the plaint will be finally disposed of on that day, you must adopt measures to produce your documents and procure the attendance of your witnesses at the hour and place above fixed; and you are hereby required to take notice that, in default of such appearance at the before mentioned time and place, the suit will be heard and determined in the absence of yourself and your agent.

(Signed)

Mamlatdar.

Note. - If you require your witnesses to be summoned by the Court you should make an application to that effect to the Court without delay, so as to allow of the service of the summonses a reasonable time before the within mentioned date.

Schedule - SCHEDULE B

SCHEDULE B

Form of Notice to be issued under Section 16

(Seal of the Court)

No. of Suit

In the Court of the Mamlatdar of

??? plaintiff;

??. Defendant.

TO PLAINTIFF (or DEFENDANT, as the case may be).

WHEREAS, in the suit above specified, instituted in this Court by ???????. the Court ordered on the ???day of ???last that???, and the said plaintiff (or defendant, as the case may be) has, under date the ??? day of????, applied to this Court to re-hear the case on the grounds that (here state the grounds);

This is to give you notice that the said application will be heard and determined on the ???? day of ??? at ??????. o?clock ??? m., at the village of???? and your are hereby required to take notice that in default of your appearance personally or by agent at the said time and place, the application will be heard and determined in your absence and, if granted, a time and place for re-hearing the suit will than be fixed.

(Signed)

Mamlatdar.

Schedule - SCHEDULE BB

[42] [SCHEDULE BB

Form of Injunction to be issued under Section 21, sub-section (2)

(Seal of the Court)

No. of Suit

In the Court of the Mamlatdar of

?? Plaintiff

?? Defendant.

To Defendant

WHEREAS in the suit above specified, the Court has this day found that you have impeded (or that you have attempted to impede) the natural flow of surface water naturally rising in or falling on the plaintiff?s under mentioned property by (here describe the property and the impediment erected, or attempted to be erected, found proved) ;

You are hereby prohibited from erecting or attempting to erect any impediment (if necessary set forth the particular kind of impediment which the defendant is enjoined not to erect) to the natural flow of surface water from the said plaintiff?s said property on to your property otherwise than under authority of a competent Civil Court.

Mamlatdar.]

Schedule - SCHEDULE C

SCHEDULE C

Form of Injunction to be issued under Section 21, sub-section (2)

[Seal of the Court]

No. of Suit

In the Court of the Mamlatdar of

??Plaintiff

??Defendant ;

To Defendant,

WHEREAS in the suit above specified the Court has this day found that you have disturbed or obstructed (or that you have attempted to disturb or obstruct) the said plaintiff in this possession of the under-mentioned property (or enjoyment of the under-mentioned use of water or use of roads, or otherwise as the case may be) by (here describe the disturbance or obstruction or attempted disturbance or obstruction found proved) ;

You are hereby prohibited from making any further attempt to disturb or obstruct (if necessary set forth the particular kind of disturbance or obstruction which the defendant is enjoined not to repeat) the said plaintiff in his possession of the said property (or otherwise as the case may be) otherwise than in execution of the decree of a competent Civil Court.

(signed)

Mamlatdar.