SHRIDHAR MAHADEO RASAL Vs. GODULAL JETHMAL

JUDGEMENT

(1.) THIS is a second appeal from a decision of the District Judge of West Khandesh. The plaintiffs instituted this action on June 3, 1935, to recover compensation or damage for illegal distraint of their property by the Mamlatdar of Taloda through the Circle Inspector on May 20, 1933. It was alleged that a sum of Rs. 127-2-9, which was due as arrear of land revenue from certain Bhils who were holders of some lands, was recovered under a warrant issued by the Mamlatdar "out of the amount lying in the plaintiffs' cupboard". The plaintiffs alleged that the Mamlatdar's act was ultra vires and without jurisdiction, and that their reputation had suffered in consequence.

(2.) AMONG the defences raised to this action the first was that the suit was not maintainable inasmuch as on June 12, 1934, the plaintiffs had instituted another action to recover the sum removed from them under the alleged illegal distraint with interest in which this claim could have been added, and that the failure to do so was fatal to this action under Order II, Rule 2, of the Civil Procedure Code. It was also contended as a second ground of defence that inasmuch as the Mamlatdar was acting in pursuance of law his action was protected under Section 6 of the Bombay Revenue Jurisdiction Act (X of 1876 ). Lastly, it was urged that the claim made more than one year after the cause of action accrued to the plaintiffs was barred under Article 28 of the Indian Limitation Act. All these contentions were disallowed in the Courts below which have held that Rs. 200 is the proper amount of damage sustained by the plaintiffs as against the claim of Rs. 2,001 made by them. Consequently that amount with proportionate costs was decreed in the Courts below. Against that decree the Mamlatdar's heirs have filed this appeal.

(3.) WITH regard to Section 6 of the Bombay Revenue Jurisdiction Act, it cannot be said that the Mamlatdar's act was bona fide in pursuance of the provisions of any law for the time being in force. The order passed by him for attachment was directed expressly against the property of the plaintiffs who were neither occupants of the land for which the arrear of revenue was due, nor in any sense defaulters in respect to the payment of land revenue. The punchnama made by the Revenue Officers at the time of the attachment of the property confirms the belief that they were executing distress against the property of the plaintiffs on the supposition that either they had agreed to pay the dues of the defaulters or that notwithstanding the sale of the latter's property to the plaintiffs that property was still attachable in the hands of the purchasers. Both these suppositions were not warranted by the facts, and the action of the Mamlatdar was ab initio illegal and ultra vires. No bona fides could be claimed in respect of such an act, and I think the defence founded upon the provisions of Section 6 of the Bombay Revenue Jurisdiction Act cannot be allowed to prevail.