1 sa245.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.245 OF 2011 WITH CIVIL APPLICATION NO.12907 OF 2011 1. Shankar s/o Manikrao Waghmare, Age: 48 years, Occ: Agri., R/o. Dagadwadi, Tq. Purna, District Parbhani. 2. Bhimrao s/o Manikrao Waghmare, Age: 55 yrs, R/o. as above. ...APPELLANTS VERSUS Bhaurao s/o Bapurao Waghmare, Age: 55 years, Occ: Agri., R/o. Dagadwadi, Tq. Purna, District Parbhani. ...RESPONDENT ... Mr. D.R. Bhadekar, Advocate for appellants- applicants. Mr. A.B. Gaikwad, Advocate for respondent sole. ... CORAM: S.S. SHINDE, J. DATE : 8TH DECEMBER, 2011 ORAL JUDGMENT : . Heard learned Counsel for the parties. With the consent of both the parties, second appeal is taken up for final hearing. 2 sa245.11 2. Learned Counsel appearing for the appellants submits that, Direction No.3 i.e. "Enquiry of mesne profit shall be carried separately under Order XX Rule 12 of Civil Procedure Code" passed by the trial Court, is in absence of any pleadings or prayers in the suit and no such direction can be given in absence of pleadings or prayers to that effect in the suit. In support of his contention, learned Counsel for the appellants placed reliance upon the judgment of the Supreme Court in the case of Ganapati Madhav Sawant (dead) Through his Lrs. vs. Dattur Madhav Sawant, reported in 2008(3) S.C.C. 183 and submitted that, the point raised herein is no more res integra and is covered by the above said pronouncement. . Learned Counsel appearing for the appellants further submits that, the land which is the subject matter of this suit is purchased by the respondent herein i.e. plaintiff without 3 sa245.11 taking permission from the Collector. The learned Counsel for the appellants invited my attention to the provisions of Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (For short, "said Act") and submitted that, once the consolidation scheme is implemented, only adjoining owner can purchase the land. It was not permissible for the plaintiff to purchase the land who is not adjoining owner and therefore, he submits that, such issue which is raised by the appellants i.e. defendants is required to be referred to the competent authority. In support of his contention, the Counsel placed reliance upon the judgment of the Supreme Court in the case of Shevantabai Maruti Kalhatkar vs. Ramu Rakhamaji Kalhatkar, reported in 1998 (8) S.C.C. 76. 3. Learned Counsel appearing for the respondent submits that, if the appellants are aggrieved by the sale transaction between the plaintiff and Damaji, in that case if it is 4 sa245.11 permissible, the appellants can challenge the said transaction but in the suit filed by the plaintiff, the contention of the appellants i.e. original defendants that the plaintiff was not entitled to purchase the said land, is rightly rejected by the trial Court. Learned Counsel further submits that, the relief of mesne profits is ancillary relief and the main relief which was prayed in the suit about the removal of encroachment and possession of encroached portion. Therefore, second appeal does not raise any substantial question of law for consideration. 4. Upon hearing the Counsel for the parties, the following questions of law falls for consideration in the second appeal. (1) Whether the trial Court is correct in directing the enquiry in mesne profits taking recourse to the provisions of Order XX Rule 12 of the Code of Civil Procedure, in absence of any pleadings and 5 sa245.11 prayers to that effect in the plaint? (2) Whether the appellants who are original defendants can question /challenge the said transaction being contrary to the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 in a suit filed by the respondent i.e. original plaintiff? 5. So far the contention raised by the Counsel for the appellants that in absence of any pleadings or prayers in the suit, enquiry in the mesne profits should not have been directed by the trial Court as held in the case of Ganapati (supra). It is admitted position that, the plaintiff did not plead or pray for inquiry of mesne profits and therefore, to that extent such inquiry was directed by the trial Court by direction in clause-3 of its order dated 12-12-2008 is required to be quashed and set aside. 6 sa245.11 6. The second point which is raised by the appellants that very purchase of the land by plaintiff from Damaji is contrary to the provisions of the said Act, is rightly negated by the trial Court holding that if the appellants are aggrieved, they can take recourse to the remedy available under the said Act. The provisions of Section 36-A and 36-B of the said Act enables the aggrieved party to approach the competent authority. Therefore, in my considered opinion, view taken by the Courts below cannot be faulted. If the appellants are aggrieved by the said transaction between the plaintiff and Damaji, in that case, appropriate remedy lies somewhere else. 7. Therefore, the judgment and order of the trial Court except clause-3 i.e. "Enquiry of mesne profit shall be carried separately under Order XX Rule 12 of Civil Procedure Code" is confirmed. However, direction No.3 as reproduced herein above about enquiry of mesne profits is quashed and set 7 sa245.11 aside. 8. If the appellants so advised, they can take appropriate proceedings before the appropriate Forum as permissible under law to agitate their grievance that the said transaction between the plaintiff and Damaji is contrary to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. This Court has not expressed any opinion about the merits of the matter. 9. Second Appeal stands disposed of on the above terms. Consequently, Civil Application stands disposed of. sd/- [S.S. SHINDE, J.] sut/DEC11