1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.666 OF 2008 Kadir Ahmd Khan Abdul Habib Khan, died, through L.Rs. ..Appellants Versus The State of Maharashtra ..Respondent ... Advocates appearing for : Appellants: Shri S.S.Kazi & Respondent : Smt. Rekha Ladda, AGP ... CORAM : R.M.BORDE, J. Dated : 1.9.2009 PER COURT :- 1. Original plaintiffs are raising an exception to the concurrent judgments of both the courts below by way of present second appeal. 2. The appellants / plaintiffs presented Special Civil Suit No. 35 of 1980 in the court of the learned Civil Judge S.D. Parbhani claiming declaration in respect of their ownership over certain agricultural properties. The plaintiffs also claimed a declaration that the decision of the Surplus Lands Determination Tribunal, Parbhani, declaring an area to the extent of 66 acres and 20 gunthas to be surplus in the matter between the State of Maharashtra and Abdul Habib Khan, who was father of plaintiffs, as well as the decision in appeal, so also the decision which is confirmed by the High Court in Special Civil Application, presented by the father of the plaintiffs, be declared as ineffective, inoperative against the plaintiffs, 2 being null and void ab initio and ultra vires so far plaintiffs are concerned and therefore, not binding on them. The plaintiffs have also claimed decree of perpetual injunction against the defendants restraining them from obstructing and interfering or dispossessing the plaintiffs from the suit properties. 3. It is not controverted that the father of the plaintiffs has filed his return in the Ceiling Proceeding and after considering the contentions raised by the father of the plaintiffs, he came to be declared as surplus holder to the extent of 66 acres and 20 gunthas of land. The plaintiffs, in this proceeding are claiming their entitlement though their mother Meharajunisa Begum, who in turn, according to the plaintiffs, has got the property from her ancestor Syed Hussain. 4. The trial Court, after taking into consideration the evidence led by the parties, was not convinced as regards the merits of the claim of the plaintiffs and dismissed the suit on 9.12.1982. 5. The plaintiffs have raised a challenge to the said judgment and decree of the trial court, by preferring Regular Civil Appeal No.15 of 2001, which came to be dismissed by the learned Additional District Judge, Parbhani on 6.12.2005. 6. The first appellate Court considered the point as regards the jurisdiction of the Civil Court to deal with the issues raised by the plaintiffs. It has been observed by the first appellate Court that the authorities have considered the pleadings of Abdul Habib, father of the plaintiffs, who had 3 disclosed at the time of the filing of the return that his family consists of wife, two minor daughters and two minor sons - who are the plaintiffs before the Court. He did not contend before the Tribunal that the fields S.Nos.59, 60 and 64 were owned by his sons on the basis of the iqrarnamas executed by his wife Meharajunisa in their favour. It is further recorded that at the time of presentation of the return, ages of the plaintiffs were shown as 24 and 22 years respectively. However, the contentions raised in the plaint, as regards the entitlement of the plaintiffs on the basis of iqrarnamas has not been raised when the ceiling proceedings were taken up by the father of the plaintiffs. The question is thus dealt with in the ceiling proceeding and answered to the effect that the father of the plaintiffs is declared as a surplus owner to the extent of 66 acres and 20 gunthas of land. This finding has been confirmed even upto the High Court since the father of the plaintiffs raised a challenge to the order passed by the Ceiling Authority and contested the matter upto the High Court. In these circumstances, the courts below were right in holding that the Civil Court has no jurisdiction to deal with the issues which have attained finality in the Ceiling proceedings. 7. The judgment of the first appellate Court has been assailed by the learned counsel for the appellants on the ground that the lower appellate Court has framed only two points and one of them is in respect of the jurisdiction of the civil court to deal with the questions alleged and another is regarding maintainability of the suit in absence of notice. According to the appellants, the first appellate court ought to have dealt with the aspects of the matter independently and that the judgment of the first appellate Court is not in consonance with the provisions of Order XLI 4 Rule 32 of the Code of Civil Procedure. Learned counsel for the appellants has placed reliance on the decision of the Apex Court in the matter of Santosh Hazari Vs. Purushottam Tiwari [AIR 2001 SC 965]. I have considered the submissions advanced by the learned counsel for the appellants. 8. In the instant matter, the Courts below have recorded a finding that the Civil Court has no competence to decide the questions raised in the suit and this very aspect goes to the root of the matter. In that circumstance, it was not necessary for the appellants to raise other points. The first appellate Court has confirmed the findings recorded by the trial court and in such circumstances, it was not necessary for the first appellate Court to deal with other aspects of the matter, particularly when, the first appellate Court has confirmed the finding of the trial Court that the Civil Court has no competence to deal with the matter. I do not find that the view taken by the Courts below is erroneous in law. No substantial question of law arises for consideration in the instant appeal. 9. In the result, the Second Appeal stands dismissed. No order as to costs. (R.M.BORDE, J.) ... akl