YELLAPPAGOUDA SHANKARGOUDA PATIL Vs. BASANGOUDA SHIDDANGOUDA PATIL
SUPREME COURT OF INDIA (FROM: BOMBAY)
YELLAPPAGOUDA SHANKARGOUDA PATIL
BASANGOUDA SHIDDANGOUDA PATIL
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Gajendragadkar, J. -
(1.)This petition has been made under S. 10 of the Bombay Hereditary Offices Act, 1874 (hereinafter called the Act.), for cancellation of the decree granted to the respondent by the Order -in-Council dated November 25, 1949, in so far as the said decree purports to operate on or include any right to the office of the Patilki and 11 Watan lands attached thereto. These lands are situated at Kirtgeri in the Taluk of Gadag. They form part of a Watan and, according to the revenue records, they have been assigned as remuneration to the officiator for the time being under S. 23 of the Act. The petitioner has obtained a certificate prescribed under S. 10, and he contends that as a result of the said certificate this Court should cancel the decree as claimed by him in the petition.
(2.)It appears that the respondent had filed a suit against the petitioner in the Court of the 1st Class Sub-Judge at Dharwar (Civil Suit No. 18 of 1934) and in the said suit he had claimed partition and possession of the properties as an adopted son of Shiddangouda. These properties were and are in the possession of the petitioner. The trial court passed a decree in favour of the respondent. The petitioner then preferred an appeal, No. 182 of 1935, in the High Court of Bombay. His appeal was allowed and the decree passed by the trial court was reversed. The respondent then challenged the High Court decree and went up to the Privy Council in Appeal No. 11 of 1948. His appeal was allowed, and the Privy Council held that the decree passed by the trial court should be restored. Accordingly an Order-in-Council was drawn up on 25-11-1949; under this order the respondent was entitled to recover by partition a half share in the properties in suit. He was also entitled to mesne profits, past and future, till the recovery of possession or three years and an enquiry was directed in that behalf. Amongst the properties in which the respondent had thus become entitled to claim a share are the 11 lands in question.
(3.)In due course the respondent filed an execution application Darkhast No. 41 of 1950, in the Court of the Subordinate Judge at Dharwar. The petitioner then contended that the 11 lands in question were governed by the provisions of the Act, they were assigned as remuneration to the office of the Patil, and as such they could not be partitioned. It was also urged on his behalf that in the original suit the respondent had not claimed any declaration that he was entitled to the office of Patil and that without such a claim the 11 lands in question could not be claimed by the respondent. In support of these pleas the petitioner relied upon the provisions of the Act contained in Ss. 7, 10, 11, 13, 24, 25 and 36.
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