1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR Second Appeal No. 334 of 2006 Ramdas Keu Meshram Vs. Mohd. Habib Mohd. Hanif Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri N. R. Bhishikar Adv. for appellant. Shri A. M. Quazi Adv. for respondent. CORAM: C. L. PANGARKAR J. Dated: 5 th February, 2008. Heard. Plaintiff/respondent instituted a suit for possession of the encroached area of 12.50 Sq. Mts. It is alleged by the respondent/plaintiff that he had purchased the suit property from the 2 brother of the appellant. He also alleged that he had purchased 514 sq. mt. of land from the brother of the defendant and he was put in possession. He alleged that defendant committed encroachment to the extent of 12.50 sq. mts. and therefore seeks possession of that area. Defendant had resisted the suit by filing written statement and had contended that plaintiff is not the owner of the property. He also contended that transaction is hit by the provisions of Prevention of Fragmentation & Consolidation of Agricultural Lands Act 1947. The learned Judge of the trial Court found that plaintiff was the owner but he found that there was no encroachment. Holding so he dismissed 3 the suit. The appellate Court however concurred with the finding of the trial Court that plaintiff was the owner of the land purchased by him and he had also held that there was to the extent of 12.50 sq. mt. Holding so he decreed the suit. Learned counsel for the appellant contends before me that the first appellate Court fell in error on two counts, firstly that the issue with regard to fragmentation should have been referred to the competent authority to decide whether it was a fragment or not and such decision could not have been given by the Civil Court. Second ground he raised is that, plaintiff had failed to establish his title inasmuch as he has failed to produce before the Court the original sale deed and the Courts below 4 had wrongly admitted the secondary evidence. Mr. Bhishikar the learned counsel for the appellant submits that whenever the issue is raised with regard to the fragmentation that issue is necessarily required to be referred to the competent authority and the civil Court cannot give any finding on it. He relied on the provisions contained in Section 36A and 36B of the Prevention of Fragmentation & Consolidation of Agricultural Lands Act. There is no doubt that whenever such an issue arises before the Court the same is required to be referred to the competent authority for the decision. Civil Court has in fact no authority to look into that aspect which is required to be decided under that Act. However, the Court is not 5 bound to make such reference to the competent authority simply because such issue is raised. Whenever such an issue is raised the Court has to find out whether there is a primafacie evidence to suggest that matter needs to be referred to the competent authority. In the instant case besides raising a plea of there being a fragment no other material has been placed on record. What therefore should have been shown by the defendant is that what was the standard area fixed in that particular area and that what was transferred to the plaintiff by defendant's brother was in fact a fragment. If such an evidence is not placed on record primafacie it cannot be said that what was transferred to plaintiff was a fragment and therefore 6 there was no need to make a reference to the competent authority. As far as the second contention is concerned there are concurrent findings by the Courts below that the plaintiff is the owner. The Courts below have relied upon a material documents namely copy of the Index Register and the Sanad issued in favour of the plaintiff by the City Survey Department. Learned counsel for the appellant had submitted that secondary evidence should not have been allowed. In this regard it may be mentioned that plaintiff had stated that the original sale deed was in possession of the Petition Writer and the Petition Writer is dead and therfefore, the same could not be obtained. Obviously, therefore, the plaintiff had come out with 7 a case that primary evidence i. e. the original sale deed was not available and in those circumstances the Courts below were justified in placing reliance on the Index Register. Further there is also a Sanad and in fact defendant does not dispute that his brother has sold half share to the plaintiff. In view of this there is no substance in the appeal. No substantial question of law is involved in the appeal. Appeal is dismissed in limine. JUDGE svk