(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 9340 OF 2010 1. Suresh Dattu Ingale, Age : 47 years, Occupation : Agriculture. 2. Arun Dattu Ingale, Age : 42 years, Occupation : Agriculture. Nos.1 & 2 R/o. Ralegaon - Therpal, Taluka : Parner, District : Ahmednagar. 3. Kusum Nagesh Borhade, Age : 40 years, Occupation : Agriculture, R/o. Manpada, Thane - 7. 4. Asha Madhukar Bhalekar, Age : 37 years, Occupation : Agriculture, R/o. Pimpalner, Taluka : Parner, District : Ahmednagar. .. Petitioners. versus 1. Dhondibhau Dagadu Karkhile, Age : 72 years, Occupation : Agriculture. (2) 2. Karbhari Dagadu Karkhile, Age : 67 years, Occupation : Agriculture. 3. Sampat Dagadu Karkhile, since deceased through L.Rs. : 3A. Smt. Indubai Sampat Karkhile, Age : 62 years, Occupation : Agriculture. 3B. Shri Vijay Sampat Karkhile, Age : 42 years, Occupation : Agriculture. Respondent Nos.1 to 3B R/o. Ralegaon - Therpal, Taluka : Parner, District : Ahmednagar. 3C. Sau. Manda Dilip Jadhav, Age : 38 years, Occupation : Agriculture, R/o. Mhase, Taluka : Parner, District : Ahmednagar. .. Respondents. ....................... Mr. A.K. Gawali, Advocate, for the petitioners. Mr. Sanket S. Kulkarni, Advocate, for respondent nos.1, 2 and 3A. Respondent nos.3B and 3C served (Absent) ........................ (3) CORAM : B.P. DHARMADHIKARI, J. DATE : 3RD MAY 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. A.K. Gawali, for the petitioners, and Adv. Mr. S.S. Kulkarni, for respondent nos.1, 2 and 3A i.e. plaintiffs. None for respondent nos.3B and 3C though duly served. 2. Rule. Rule made returnable forthwith. Heard finally with consent. 3. The petitioners / defendants have challenged the order dated 7-8-2010, passed by the learned Ad hoc District Judge-1, Ahmednagar, in Misc. Civil Appeal No. 127/2007, dismissing the appeal filed by the petitioners. The said appeal was filed by them, challenging the order dated 25-10-2007, passed by the learned Civil Judge (Junior Division), Parner, below Exhibit 5 in Regular Civil Suit No. 264/2005, allowing application filed by the respondents seeking temporary injunction. (4) 4. Adv. Mr. A.K. Gawali, for the petitioners / defendants contends that the bar of jurisdiction of Civil Court specifically raised in reply has not been looked into at all and because of Section 9A of CPC, jurisdiction exercised is, therefore, unsustainable. He further contends that after completion of consolidation, a certificate under Section 24(1) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, has been issued in favour of the petitioners showing their possession over entire 7 Gunthas. That certificate has got presumptive value and it has been overlooked. He points out that though sale deed in favour of the petitioner is only in relation to 2 Gunthas of land, the consideration for entire 7 Gunthas bas been paid. Lastly, he contends that in order to verify position on spot, commissioner was appointed and report of commissioner is in favour of the petitioner but that has not been so construed. 5. Adv. Mr. S.S. Kulkarni, for respondent nos.1, 2 and 3A, has supported the impugned order. He states that there was no sale deed for entire 7 Gunthas and hence, the certificate under Section 24(1) has no presumptive value. He points out that contention, that consideration for entire 7 Gunthas has been paid, is raised for the first time before this court. He relies upon report of court commissioner to urge that said report records a (5) finding in favour of these respondents. According to him, as the dispute has got no bearing on Consolidation Scheme, objection to the jurisdiction of Civil Court is misconceived. 6. Respondent nos.3B and 3C, who are plaintiffs, have chosen not to appear though served. 7. The facts clearly show that court commissioner was appointed by the trial court to verify the position on the spot. The report of court commissioner reveals possession of present petitioners on land in excess of 2 Gunthas. The total land found in their possession is more by 1.12 Gunthas than 2 Gunthas. The commissioner has found the existing Pakka house, some platform, cattle shed and place for throwing waste etc., all admeasuring 3400 square feet in possession of petitioner and its total area is stated to be 3.12 R. Because of this finding of commissioner, trial court and the appellate court have restricted possession of petitioner to only 3.12 R area and remaining portion is held to be in possession of respondents. 8. It is apparent that report of court commissioner does not similarly show any other material indicating positively possession of plaintiffs over remaining land. The fact that present petitioners are found in possession of area in excess of (6) sale deed in their favour itself shows correctness of assertion about possession of entire 7 Gunthas. Burden was on plaintiffs to prove their possession and they have failed to discharge it. Had commissioner recorded a positive finding of possession of present respondents, after noticing relevant details on spot, the possession of petitioners could have been restricted only to 3.12 R. In the absence of any such indication in the report of court commissioner, the exercise undertaken by the trial court and appellate court cannot be sustained. I, therefore, find total non- application of mind in so far as said report of court commissioner is concerned. 9. In the result, the petition is allowed. (i) The impugned order dated 7-8-2010, passed by the learned Ad hoc District Judge-1, Ahmednagar, in Misc. Civil Appeal No. 127/2007, is quashed and set aside. So also, the order dated 25-10-2007, passed by the learned Civil Judge (Junior Division), Parner, below Exhibit 5 in Regular Civil Suit No. 264/2005, is quashed and set aside. The application Exhibit 5 filed by the respondents before the trial court stands rejected. (ii) However, considering the fact that the suit has been filed for relief of declaration and injunction, present respondents are (7) restrained from creating any third party interest or from altering the nature of suit property during the pendency of suit. (iii) Proceedings in the suit are expedited and the trial court shall attempt to decide Regular Civil Suit No. 264/2005 as early as possible and in any case by 31st March 2012. Needless to mention, that if any preliminary issue arises for determination, the same shall be decided in accordance with law. 10. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp9340