LexFATMA HAJI ALI MOHAMMAD HAJI AND OTHERS versus THE STATE OF BOMBAY
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l~l Ari• S>atli v, x., •• , $in(jh ONIQl!wr1. 1951 Morell 2. SUPREME COURT REPORTS [1951) that the common ancestor owned the land and that his sons got it from him ht inheritance in equal shares. The District Judge was obviously wrong when he decreed the plaintiff's suit even with reference to the lands in Kadduwal conceded to be non-ancestral and the land in Khasra No. 2408 measuring 4 bighas and 16 biswas, which was not in the possession of the two sons Jodha Singh and Jai Singh. He was equally wrong in holding tHat the customary law which governed the parties did not permit the owner to will away ':my portion of the property, whether ancestral or self-acquired ; this is contrary to section 7 of Punjab Act II of 1920, which is in these terms : "Notwithstanding anything to the contrary con- tained in section 5, Pqniab Laws Act, . 1872, no person shall contest any alienation of non-ancestral immova- ble property or any appointment of an heir to such property on the ground that such alienation or appointment is contrary to custom." No other point arises in this appeal which fails and is dismissed with costs. in all the courts. Appeal dismissed. Agent for the appellant : Ganpat Rai. Agent for the respondents : S. P. -Verma. FATMA HAJI ALI MOHAMMAD HAJI AND OTHERS "· THE STATE OF BOMBAY. [SAmo FAZL ALI, MEHR CHAND MAHAJAN, MuKHERJEA and CHANDRASEKHARA AIYAR JJ.] Bombay Land Revenue Code, 1879, s. 48-Rules under the Code, r. 92-Agricultural land used for other purposes-CoUectOf"• d•IY to alter assessment-Mere confirmation of Co/lecwr's tmltr rt'fusing to re-assess-Whether amounts to direction "' Ml otltnwist!-Rig/,t to re4Jsess•nt. I ~C.R. SUPREME COURT REPORTS llule 92 of the rulcis issued under the Bombay Land · Revenue Code, 1879, provided that when land assessed for purposes of agriculture only is subsequently used for any purpose unconnect- ed with agriculture, the assessment upon the land so used shall unless otherwise directed by the Government be altered under s. 48 (2) by the Collector in accordance with rr. 81 to 87 : Held, that as the rule imposes an imperative duty on the Collector to alter the assessment, the power which has been given to the governmeni to give directions to the Collector . not to act in accordance with the imperative pr<.>visions of the rule has to be exercised in clear and unambiguous terms as it affects civil rights of the persons concerncc.i and the decision that the power has been exercised must be notified in the usual manner. Where the Government .did not pass any resolution or issue any directions to that effect but merely ccinfirmed on appeal an order of the C<.>llector rejecting an application to assess non- agricultural assessment on agricultural lands which had been used for building purposes : Held, that the confirmation of the Col- lector's order by the Government did not amount to a direction te act otherwise within the mcaninJi: of r. 92 and the applicant was entitled to have the assessment on the lands altered under s. 48 (2) in accordance with fr. 81 to 87 as laid down in r. 92. CIVIL APPELLATE JuR1so1cnoN Appeal (Civil Appeal No. 28 of 1950) from a judgment and decree of the High Court of Judkature at Bombay dated. 19th March, 1945, in Appeals Nos. 68 and 190 of 1942. H. D. Banaji (V. R. Desai, with him) for the appellants. M. C. Setalvad, Attorney-General for India (G. N. Joshi, with him) for the respondent. 1951. February 5. The judgment o£ the Court was delivered by MAHAJAN J.-This is an appeal from a judJtment of the High Court of Judicature at Bombay modifying the decree of the trial court and decreeing partially the plaintiff's suit. The appellants are the legal representatives of the original plaintiff Haii Ali Mohamed Haji Cassum. The State of Bombay is the respondent. · The facts giving rise to this controversy, brieflv stated, are as follows :- 35 19!H -·- Fa1ma H4it .lfli Moh-' and Others v. Th• 8141# of Btm6izy. Mahaja~ j. 1951 FatmaHaj; AliMoham•d .tmd Othtrt v. Th1StaJ1 qf BornllaJ Mahoj .. J. 268 SUPREME COURT REPORTS. [1951 J Village Dahisar originally formed part of the Malad Estate comprising in all eight villages. The said estate was conveyed by the East India Company to two Dady brothers for valuable consideration by a deed of indenture dated the 25th January, 1819. By that conveyance all the la
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