1 sa 801.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 801 OF 2010 1. Shaikh Sultan S/o Mohammad and others .. Appellants Versus 1. Pandurang Ganpat Sonwane and others .. Respondents Shri A. D. Kasaliwal, Advocate for Appellants. CORAM : S. V. GANGAPURWALA, J. DATE : 30TH MARCH, 2011. PER COURT : . This is an appeal by the original defendant Nos. 1 to 4. The present respondent No. 1 had filed a suit for possession of the suit land against the defendants on the ground that he is owner of gut No. 148 admeasuring 70R. The Trial Court decreed the suit. The defendant No. 1 to 4 filed an appeal. The District Court dismissed the appeal confirming the judgment and decree of the Trial Court. Aggrieved thereby the defendant Nos. 1 to 4 have filed the present second appeal. 2 sa 801.10 2. Shri A. D. Kasliwal, the learned counsel for appellants strenuously contended that in fact, the present suit was barred under the provisions of Order 2 Rule 2 of the Civil Procedure Code in as much as, prior to the present suit the plaintiff had instituted a suit for simplicitor injunction in respect of same suit property. In the said earlier suit plaintiff was denied temporary injunction as the Trial Court prima facie found that he is not in possession. Thereafter the plaintiff withdrew the said suit and has filed the present suit for possession. According to the learned counsel, even the Trial Court had come to the conclusion that plaintiff could not prove that he was dispossessed during the pendency of earlier suit. In such circumstances, when on the date of presentation of earlier suit the plaintiff was not in possession and had omitted to sue for the relief of possession the present suit is not maintainable and is barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure. To substantiate his argument the learned counsel relied on the judgment of the learned Single Judge of this Court in a case of Dayaram Raghobaji Belsare Vs. Vishrantibai George Lavet reported in 1990(1) Mh. L. J. 227. The learned counsel further contended that consolidation scheme was implemented in the year 1972-1973. The suit property was allotted to third person 3 sa 801.10 and in the year 1979 it is shown that correction has been made and suit property is shown to have been mutated in the name of present plaintiff. Mere mutation entry would not give any right to the plaintiff, nor will bestow title to the plaintiff. The consolidation proceedings have to be corrected as per the procedure laid down under Section 32 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 and unless the same is followed, mere mutation entry would not give any right. For the said purpose the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Mohammad Hanif Abdul Masjid Isane & others Vs. Juned Mohammad Jalal and others reported in 2005 (1) Bom. C. R. 613. It was further contended by the learned counsel that the plaintiff was not in possession of the property which shows that the mutation entry was merely made on paper and same would not give any right, title and interest to the plaintiff. Inter-alia the plaintiff could not have maintained the present suit. Even assuming the possession of the present appellants to be illegal, till unless the plaintiff proves title, the plaintiff would not be entitled to claim possession. 3. With the assistance of the learned counsel I have gone 4 sa 801.10 through the judgment. The plea of Order 2 Rule 2 of the Civil Procedure Code, it seems was not agitated when an appeal was preferred before the lower Appellate Court, nor any argument seems to have been advanced by the appellants before the lower Appellate Court. When the plea of Order 2 Rule 2 was explicitly not taken up before the lower Appellate Court, nor it appears that arguments over the same were advanced, then the said point could not be agitated in the present second appeal. Moreover, the plea of Order 2 Rule 2 would not be available to the appellants, in view of the fact that in the earlier suit an application was filed by the plaintiff seeking withdrawal of suit with liberty to file fresh suit for possession, which was granted by the Court. The said order was not challenged by the present defendants and same has become final. The judgment of the learned Single Judge of this Court in case of Dayaram Raghobaji Belsare Vs. Vishrantibai George Lavet referred supra relied by the learned counsel for the appellants would not be applicable, in view of the fact that in the said case the plaintiff therein had unconditionally withdrawn the suit. Unconditional withdrawal of the suit tantamounts to dismissal of the suit. In the present case, the liberty was granted by the Court to file the fresh suit for possession on the same cause of action. 5 sa 801.10 4. The other contention of Shri Kasaliwal, the learned counsel that mere mutation entry would not give any right and title need not be dilated. The same is a trite law. The contention of the learned counsel that while making correction in consolidation record no proper procedure is followed cannot be countenanced. There is no pleading to the effect that the procedure under the Consolidation Act were not followed by the agency, when change was made in the record. The consolidation scheme was effected in the village in the year 1975. But by mistake the name of Vithoba Govinda was shown as owner of suit field gat No. 148. The said mistakes were lateron corrected by mutation entry No. 36. The holder of the land of the earlier record did not raise any objection nor showed that he had any objection to the said correction right since 1979. The present plaintiff is shown to be the owner of the property and at no material point of time the vendor of the present appellants was shown as owner of gut No. 148. He was all along shown owner of gut No. 142 and 132. After correction Vithoba Govind was shown as owner of gut No. 137. The Courts below have taken into consideration all these aspects. It seems, the vendor of the plaintiff showed as if gut No. 142 is sold and has sold the suit field situated within the boundaries of gut No. 148 as Ramchandra was knowing that he was only owner 6 sa 801.10 of gat No. 142. 5. The defendants have also contended that the partition had taken place and it was suggested by the present appellant that in partition the suit field was allotted to the share of Ramchandra, but the record is otherwise. The Courts below have discussed the said aspect. In the light of above facts the Courts below have taken possible and plausible view of the matter. 6. In view of above conspectus of the matter the second appeal is sans substantial question of law and as such is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/March. 11