Jina Jibhai Baria vs Mathur Jibhai Baria

The plaintiff filed this suit in the Mamlatdar''s Court averring that the defendant had dispossessed him of three acres and seven gunthas of land cut of Survey No. 51. The order of the Mamlatdar was that the plaintiff should be put in joint possession of the whole of Survey No. 51 with the defendant. It has been contended that that order was without jurisdiction. We have been referred to the decisions of this Court in Keso Dinkar v. Moro Sakharam (1883) P. J. 120. and Krishna v. Gopala (1890) P. J. 316. which decided that the Mamlatdar had no jurisdiction to award joint possession in proceedings under the Act III of 1876. The Mamlatdar in making this order relied upon the ease of Bai Jamna v. Bai Jadav 2 Ind. Lee 620. But the question decided there was one of an entirely different character. The only ground en which we could held that the Mamlatdar had jurisdiction would be that jurisdiction had been granted by Bombay Act II of 1906. The explanation to Section 5 is, as often happens, somewhat obscurely worded and it may be read in two different ways, either as confirming the decisions of this Court to which we have just referred Keso Dinkar v. Moro Sakharam(1883) P. J. 120. and Krishna v. Gopala (1890) P. J. 316. or as altering the law; and at first we thought that the explanation might be read as showing that in certain cases of joint ownership the action of one co owner against the other might amount to dispossession, and, therefore, it might be concluded that where the action amounted to dispossession the Mamlatdar could award joint possession. But we think the proper way to read that explanation is that any action of ore co-owner, who has rights over the whole property, although it may interfere with the joint ownership of his co-owner, does not amount to dispossession under the Act, and that it was not intended that ouster by cue co-owner of the other should amount to dispoesession within the meaning of the Act so as to entitle the Mamlatdar to award joint possession. This seems to us to be clear from the provisions of Section 19 which prescribe very clearly the points to be decided by the Mamlatdar, at the hearing, and the case of a plaintiff who is at king for joint possession against his co-owner is not dealt with either expressly or by implication. We think, therefore, the law still stands as it did when Kirshna v. Gopala (1890) P. J. 316. was decided, and that the Mamlatdar had no jurisdiction in this case to decree joint possession. The Rule must be made absolute and the decree set aside and the plaintiff''s suit dismissed with costs in the Mamlatdar''s Court and in this Court.