1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.452 OF 1991. Ramchandra Nagesh Dikshit Died, through his L.Rs.: 1) Smt. Nalini w/o Ramchandra Dikshit, age 64 years, Occu. Household, R/o C-61/13, 11th Scheme, Near Vitthal Mandir, Shivaji Nagar, Aurangabad. 2) Shri Mukund s/o Ramchandra Dikshit, age 44 years, Occu. Service, R/o C-61/13, 11th Scheme, Near Vitthal Mandir, Shivaji Nagar, Aurangabad. .... APPELLANTS. ( Original Plaintiffs) VERSUS 1) Laxmikant Bhagwanrao Dixit. 2) Suryakant Bhagwanrao Dixit. 3) Parshram Bhagwanrao Dixit. 4) Manohar Bhagwanrao Dixit. 5) Harihar Bhagwanrao Dixit. 6) Radhakishan Bhagwanrao Dixit. 7) Laxman Nagesh Dixit, 8) Balkrishna Nagesh Dixit. .... RESPONDENTS. ( Original Defendants ) ... Shri S.V. Natu, Advocate for appellants. Shri M.P. Harjule, Advocate holding for Shri R.S. Deshmukh, Advocate for R.Nos.1 to 6. Shri B.A. Darak,Advocate for Respondent No.7. ... 2 CORAM:R.G. KETKAR,J. DATE : 9th NOVEMBER, 2009. ORAL JUDGMENT: 1. This Second Appeal is directed against the judgment and decree dated 5th September, 1991 in Regular Civil Appeal No.158 of 1984 passed by the II Additional District Judge,Beed. By that judgment, the learned District Judge allowed the appeal preferred by the respondents – original defendants no.1 to 6 and set the judgment and decree dated 18th April, 1984 in Regular Civil Suit No.135 of 1979 passed by the Civil Judge, Junior Division, Majalgaon. The plaintiffs’ suit for declaration of their ownership in respect of Gat No.477 admeasuring 21 acres approximately and for possession and injunction was dismissed. The above appeal was admitted on Ground Nos.3,5,6, 9 and 10 as they raised substantial questions of law. These grounds read as under: “(3) Whether lower Appellate Court can urge a point which is not claimed by Plaintiff, neither in plaint or relief clause? (5) Whether the observations and findings of 3 the lower Appellate Court on the point of possession as discussed in Point No.2 and 3 are in consonance with law? (6) Whether lower Appellate Court or Civil Court has jurisdiction to interfere into the findings of the Consolidation Officer? (9) Whether lower Appellate Court has acted contrary to Section 36-A of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947? (10) Whether lower Appellate Court is justified in not considering that the Plaintiff is in possession of the suit land as owner more than 12 years, which perfected the title of the Plaintiffs?” 2. The relevant and material facts for disposal of the present second appeal are that the appellants, hereinafter referred as plaintiffs, instituted suit against respondents 1 to 6 – original defendants, hereinafter referred as defendants, for declaration of ownership, possession and perpetual injunction in respect of Gat No.477 admeasuring 6 H, 33 ares as were particularly described in paragraph 1 of the plaint (for short, “suit land”). The plaintiffs claimed that agricultural land bearing Survey No. 206 admeasuring 36 acres 26 gunthas was originally owned and possessed by one Nagesh Keshav Dixit. The Eastern portion of 21 acres out of the said land was Khalsa and Western 4 portion of 15 acres 26 gunthas was Inam land. Said Nagesh Keshav Dixit died in 1952, leaving behind his sons namely Ramchandra (Original Plaintiff), Laxman (Defendant No.7) and Balkrishan (Defendant No.8). They succeeded to the estate of Nagesh Keshav Dixit. In the year 1963, there was partition between the original Plaintiff and the Defendants No.7 and 8 wherein Survey Nos.206 and 204 were allotted to the share of the original Plaintiff and since then he was exclusively in possession of these lands. Subsequently, there was partition between the original Plaintiff and his son Mukund. The Eastern portion of 21 acres out of Survey No.206 was allotted to Mukund and the remaining Western portion of 15 acres and 26 gunthas out of Survey No.206 was allotted to the original Plaintiff in the said partition. In the year, 1977 Consolidation Scheme was made available to village Manjrath wherein the area admeasuring 15 acres 26 gunthas out of Survey No.206 belonging to the original Plaintiff, was allotted Block No. 477. This is the suit land. It is further case of the plaintiffs that the defendants are owners 5 of Survey No.205 admeasuring 8 acres 11 gunthas, which is situate on the Western side of the suit land. In the consolidation scheme, this land was allotted Block No.476. The portion of 21 acres out of Survey No.206 belonging to Mukund was allotted Block No.478 in the consolidation scheme. Since the defendants 1 to 6 started obstructing plaintiff’s possession and enjoyment in respect of the suit land. the present suit was instituted. 3. The defendants 1 to 6 resisted the suit by filing written statement at Exhibit 55. They contended that 21 acres out of Survey No.206 was Khalsa land and 15 acres 26 gunthas was Inam land. The Khalsa land was situate in the western portion while Inami land was situate in Eastern portion of S.No.206. Khalsa land was their ancestral property and the plaintiff has no concern. However, in collusion with the Consolidation authorities, the plaintiffs manipulated the record about situation of Khalsa and Inami lands in S.No.206 and they challenged the said record by filing an appeal to the 6 Settlement Commissioner. It is their contention that the Consolidation authorities ought to have allotted 7 H. 64 R. from Block No.477 in their favour. On this among other grounds, the defendants resisted the suit. 4. The learned trial Judge framed necessary issues and the parties led oral as well as documentary evidence. The learned trial Judge considered the material on record and came to the conclusion that the plaintiffs established the title in respect of 36 acres 26 gunthas land in Survey no.206. Consistent with this finding, he decreed the suit. Against this decision, the defendants 1 to 6 preferred First Appeal which was allowed. Being aggrieved by the said decision, plaintiffs have preferred the above second appeal. 5. In support of this appeal, Shri Natu, learned Counsel for the appellants submitted that the document at Exh.8 pertains to the year 1329 Fasli equivalent to the year 1920 wherein the area of Survey No.206 is shown as 36 acres 26 7 gunthas. This being the oldest document, entry in the revenue record has presumptive value. He further submitted that in the subsequent years the area of defendants was shown either to the extent of 26 or 27 acres but not in any case 29 acres including 8 acres 11 gunthas from Survey No.203. He further submitted that in paragraph 21 of the written statement of the defendants 1 to 6 they clearly admitted the entire area of survey no.206 as 36 acres 26 gunthas. The learned District Judge committed error in paragraph 13 of the impugned judgment in holding that the defendants did not admit ownership of the plaintiffs as also title of the plaintiffs with regard to 36 acres 26 gunthas. The Counsel for the appellants further submitted that at any rate, in the year, 1977 when the consolidation proceedings were implemented, survey No.206 admeasuring 36 acres 26 gunthas was shown in the name of plaintiffs and their family. The defendants did not challenge the consolidation proceedings. With the result, the learned District Judge committed error in para 13 of the impugned judgment when it was stated that though 8 the said Court may not have jurisdiction to set aside the record prepared by the consolidation authorities, it still has right to appreciate its evidenciary value. 6. On the other hand, learned Counsel Shri Harjule for defendants no.1 to 6 submitted that except the solitary entry of the year 1920 in favour of the plaintiffs right from 1922 to 1977 all along defendant’s name was shown in the Record of Rights as possessor and owner of 21 acres i.e. the disputed property. The plaintiff did not challenge these entries. In so far as the consolidation proceedings are concerned, the appeal was preferred to the Settlement Commissioner. He invited my attention to the judgment of the learned District Judge and supported the impugned judgment. 7. I have heard the learned Counsel for the parties at length. With the assistance of the learned Counsel I was taken through the original record of the case. Perusal of Exh.8-C which is Shetwar Patrak of 1329 Fasli equivalent to the 9 year 1920 shows area of Survey No.206 to the extent of 36 acres 26 Gunthas. Keshav Purushottam Dixit is shown as khaata holder to the extent of 18 acres 35 gunthas of Sarkari land. The remaining area of 15 acres 26 gunthas is Inam land. However, there is no evidence on record to show that Keshav inherited this land. The learned District Judge considered this Exh.8- C in paragraph 13 as also perusal of Exh.8-C indicates that total area of survey no.206 is 36 acres 26 gunthas. However, out of that area 18 acres 35 gunthas was shown as Sarkari land in the name of said Keshav Purushottam Dixit. The learned District Judge has considered this in paragraph 13 of the impugned judgment. In paragraphs 11 and 12 the learned District Judge has considered the document at Exh.145 namely extract of Vasulbaki Bandobast of 1327 Fasli which shows that Balkrishna Shastri was shown as owner of 7 acres 7 gunthas in Survey No.203 and 15 acres 26 gunthas in Survey No.204 at the time of Bandobast-ula. It further shows that in Bandobast-Sani, the portion of 7 acres 7 gunthas in Survey No.203 belonging to Balkrishna Shastri 10 was given Survey No.205 and its area was shown as 8 acres 6 gunthas. It also shows that 15 acres 26 gunthas out of Survey No.204 belonging to Balkrishna Shashtri was allotted Survey No.206 and its area was shown as 18 acres 35 gunthas. It shows further that the area of 7 acres 8 gunthas out of Survey No.203 belonging to Keshav Purshottam Dixit was given Survey No.204 and its area was shown as 6 acres 19 gunthas, while area 15 acres 26 gunthas out of Survey No.204 belonging to Keshav was given Survey No.206. This extract shows that holding of Balkrishna Shastri as well as Keshav Purshottam Dixit was settled finally at the time of Bandobast Sani after malting Survey settlement. The plaintiff has shown ignorance about these entries made in the Vasulbaki Bandobast record. However, the entries being very old and unchallenged, will have presumptive value about its correctness. This presumption is more strong because it is not rebutted by the plaintiff. This document shows that Keshav’s title was restricted to 15 acres 26 gunthas Inam land in Survey No.206. It further shows that the total area held by Balkrishna in 11 Survey No.205 and 206 was about 27 acres 1 guntha. The extract of Form No.9 at Exhibit 89 shows that the area of Inam land belonging to Keshav Purshottam Dixit in Survey No.206 is shown as 15 acres 26 gunthas out of survey no.206, while remaining portion is shown as Khalsa land. The learned District Judge considered the extracts of Pahani-Patrak Exhibit 93 to 123 which show that the area of Inam land out of Survey No. 206 belonging to family of the plaintiff was shown as 15 acres 26 gunthas and the area of land owned by family of defendants was shown as 27 acres 01 guntha throughout. The extract of mutation register of 1352 Fasli (Exh.88) C- Patrak) mentions that that family of defendants owned about 29 acres 1 guntha in Survey No.205. The 7/12 extract of Survey No.205 at Exh.87 shows that the family of defendants held about 27 acres 1 guntha in Survey No.205. The extract of field book Exhibit 134 shows that the area of Inam land out of survey no.206 was 15 acres 26 gunthas. The extract of field book Exhibit 135 shows that the family of defendants held 26 acres 01 guntha in survey no.205 as Khalsa land. Similar entries 12 are found in Khasra Patrak Exhibit 142 and 143. 8. Considering the documentary and oral evidence, the learned District Judge allowed the appeal. It is undoubtedly true that when the consolidation scheme was implemented in the year, 1977, the survey no.206 admeasuring 36 acres 26 Gunthas was shown in the name of the plaintiffs and their family. However, the learned District Judge observed in paragraph 13 of the impugned judgment that while effecting change, it does not appear that notices were given to the defendants. This was more so when right from 1922 onwards till the implementation of the consolidation scheme, all along the defendant’s name was shown against the area of 21 acres, which is the disputed property. What is significant is that the appellants – plaintiffs did not object to these entries for all these years. The learned Counsel for respondents submitted that against this entry appeal was preferred to the Settlement Commissioner and that was dismissed by the Settlement Commissioner. Be that as it may. However, what is relevant to know is that except 13 in the year 1920, all along the defendant’s name was shown in respect of 21 acres land as owner and possessor. 9. In view of this, I find no error committed by the District Judge in allowing the appeal. In my opinion, the learned District Judge has correctly appreciated the documentary evidence on record which, as set out earlier, stands in the name of the defendants except to the extent referred herein above. 10. In view of this, the appeal is devoid of substance and deserves to be dismissed. Hence, the following order: The Second Appeal is dismissed with no order as to costs. [ R.G. KETKAR, J ] Kadam/* 14 SECOND APPEAL NO.452 OF 1991. Date of decision :09.11.2009 For approval and signature. THE HONOURABLE SHRI JUSTICE R.G. KETKAR. 1. Whether Reporters of Local Papers } may be allowed to see the judgment? } Yes. 2. To be referred to the Reporter or not? } No 3. Whether Their Lordships wish to see the fair copy of the judgment? } No. 4. Whether this case involves a substantial } question of law as to the interpretation } of the Constitution of India, 1950 or } any Order made thereunder? } No. 5. Whether it is to be circulated to the } Civil Judges? } No. 6. Whether the case involves an important } question of law and whether a copy of } the judgment should be sent to Mumbai, } Nagpur and Panaji offices? } No. [Prakash Kadam] Private Secretary to the Honourable Judge.