1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.905 OF 2008 1) Babulal Usman Shaikh, R/o-Magar Sangvi, Tq-Tuljapur, Dist-Osmanabad. 2) Nizam Usman Shaikh, R/o-Magar Sangvi, Tq-Tuljapur, Dist-Osmanabad. 3) Chand Usman Shaikh, R/o-Magar Sangvi, Tq-Tuljapur, Dist-Osmanabad., 4) Shabbir Usman Shaikh, R/o-Magar Sangvi, Tq-Tuljapur, Dist-Osmanabad. 5) Karim Farid Shaikh, Dead- abated. ...APPELLANTS. VERSUS 1) Yasin Mahboob Shaikh, R/o-Magar Sangvi, Tq-Tuljapur, Dist-Osmanabad. 2) Nabilal Mahboob Shaikh, R/o-Magar Sangvi, Tq-Tuljapur, Dist-Osmanabad. 2 3) Ramjan Gulab Shaikh, R/o-Magar Sangvi, Tq-Tuljapur, Dist-Osmanabad. 4) Mujoddin Karim Shaikh, R/o-Magar Sangvi, Tq-Tuljapur, Dist-Osmanabad. ...RESPONDENT. ... Mr. K.K. Kulkarni Advocate for Appellants. ... CORAM: K.K. TATED, J. ORDER RESERVED ON : 9TH JUNE, 2009 ORDER PRONOUNCED ON: 17TH JUNE, 2009 ORDER : 1. Heard Mr. Kulkarni, learned counsel appearing on behalf of the Appellants. 2. The present Second Appeal preferred by original defendant against the Judgment and decree dated 19th July, 2008 passed by Principal District Judge, Osmanabad in Regular Civil Appeal No.65 of 1998 arising out of the Judgment and decree dated 27th July, 1998 passed by Civil 3 Judge, Junior Division, Tuljapur in Regular Civil Suit No.152 of 1990. 3. The Respondent/ original plaintiff filed Regular Civil Suit No.152 of 1990 for perpetual injunction restraining the defendants from interfering with his possession over the land admeasuring 2 Hectors and 46 Rs out of land bearing Block No.815 and land bearing Block No.835 area 2 Hectors and 75 Rs with one well , three mango trees and right to irrigate the said land from common well n Block No.827. After hearing both the sides, the trial Court by Judgment and decree dated 27th July, 1998 restrained the Appellant/ original defendant from interfering with possession of the Respondent / original plaintiff over the suit land bearing Block No.815 and 835, more particularly described in Plaint prayer clause (A). 4. Being aggrieved by the said Judgment and decree dated 27th July, 1998 the Appellant preferred Regular Civil Appeal No.65 of 1998 and the same came to be dismissed by Judgment and decree dated 19th July, 2008. Both the Courts below held that Respondents proved that they are in possession of the entire suit land and 4 Appellants caused obstruction to their possession. 5. It is the case of the Respondents/ original plaintiffs that after the father of the original plaintiff No.3 Gulab absconded, the Appellants started causing obstructions to the Respondents possession over the suit property. Therefore, they filed Regular Civil Suit No.152 of 1990. Both the Courts below considered the mutation entry No.1254 at Exhibit 130. It is held by both the Courts below that on perusal of the same, it appeared that defendant No.1 had partitioned the lands bearing Block No.816, 834 and 833 in favour of his brothers. The mutation entry was certified on 31st October, 1986. On the basis of these facts, both the Courts below held that the Appellants have admitted the adjustment of the land as per consolidation scheme. Both the Courts further held that defendant No.1 admitted that he has signed the statement before the consolidation officer. The defendant No.1 further admitted in his cross examination that the land survey No. 267, 268 and 269 after mutation, was converted into three Gut numbers. He further admitted that the land in his possession was given the Block numbers as 834 and 816. The defendant No.1 also admitted that he is cultivating the land bearing Block No.834. On 5 the basis of these admissions of the Appellant, both the Courts below held that the Respondents / original plaintiffs proved that they were in possession of the entire suit land and the Appellants caused obstruction to their possession. 6. Learned counsel for the Appellants/ original defendants submitted that though the Appellants raised several grounds in the present Second Appeal, he restricts his arguments only to the following two grounds: i) The Respondents/ original plaintiffs have no right to file present Suit, ii) The Respondents/ original plaintiffs failed to give proper description of the property in the Plaint as required by the Civil Procedure Code. 7. In view of the statement made by learned counsel for the Appellants that Appellants are pressing only above mentioned two grounds, it is not necessary to discuss the other issues raised by the Appellants in the Second 6 Appeal Memo. Learned counsel for the Appellants submitted that the Respondents are not owners and possessors of the suit property and therefore there is no cause of action for filing the present Suit. Learned counsel for the Appellants submitted that the Appellants and Respondents being governed by Mohammedan Law, they cannot get right in ancestral property till the death of their father and therefore the Respondents/ original plaintiffs have no right to file the present Suit. 8. With the assistance of learned counsel for the Appellants, I have gone through the Paper Book prepared in Regular Civil Appeal No.65 of 1998 produced by learned counsel for the Appellants. I have also gone through the copy of the Plaint filed by the Respondents. They specifically stated in Para 5 of the Plaint, that their father Gulab Mehboob Shaikh was missing. They are in possession of the suit property and they alone are cultivating the same. They filed the present Suit as the Appellants started disturbing their possession on one or the other ground. These facts are sufficient for the Respondents to prefer Suit against the Appellants restraining them from interfering with their peaceful possession. Therefore, I hold that the Respondents have 7 right to file the Suit against the Appellants restraining them from disturbing Respondents possession over the suit property. 9. Learned counsel appearing on behalf of the Appellants relied on the Judgment in the matter of Hemdas Premdas Ranbakuda and others vs. Smt. Surajbai d/o Dhansao Sahu and others, reported in 2008 (3) ALL M.R. Page 765 to show that the machinery provided under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 could not have been used for transfer of title to a person who was not owner of the land forming subject-matter of Consolidation scheme. He specifically relied on Para 8 and 9 of the Judgment, which read as under: 8. In the present case, it appears that the deceased Kundanbai wanted the land to be gifted to her grand son i.e. Chudaman, but then there is no formal gift deed as required by provision of Section 123 of Transfer of Property Act. Provisions of Section 123 are very specific and gift of immovable property may be effected by executing a registered document duly attested by two attesting witnesses. This procedure in 8 Section 123 of the Transfer of Property Act has admittedly not been followed in the present matter. The provision of Section 24 of the 1947 Act, do not exempt any donor from following the procedure prescribed under section 123 of the Transfer of Property Act. Exemption from payment of stamp duty or registration fee given by section 24 (2), is not attracted and applicable when a gift deed as required by section 123 of the Transfer of Property Act is tendered for registration. 9. The Lower Appellate Court has addressed itself to this issue in paragraph no.10 of its Judgment. It has basically found that from the evidence of original plaintiff it appeared that Kundanbai had a desire to give suit land to Chudaman and she gave it accordingly through a memorandum of Consolidation Officer. It recorded that Kundanbai was alive till 1976 and Consolidation Officer recorded name of Chudaman on 13.12.18971. it further found that the certificate under section 24, was duly registered and therefore all formalities of a gift was substantially complied with. The certificate removed defects in the oral gift and therefore could not be said to be illegal. The Revenue Officer 9 i.e. The Consolidation Officer acted in the course of its duties and completed the records and there was nothing wrong in it and in the certificate as issued. It is further observed that owner Kundanbai was estopped from denying the truth of the transaction and her title got extinguished with the registration of the said certificate. The Court further concluded that therefore Chudaman got a valid title and as such original plaintiff did not get any title thereafter through Kundanbai. It also found that Kundanbai never revoked the gift till her death and after Chudaman s death original plaintiff being his father was a Class II heir. Chudaman died as a member of Hindu Undivided Family and after his death, defendant nos. 1, 2 and 3 succeeded to the suit lands jointly. In view of this finding it has reversed the judgment and decree of trial Court. Once it is held that section 24 of the 1947 Act operates in totally independent area and has got no bearing on Section 123 of Transfer of Property Act, it is clear that entire application of mind by the Lower Appellate Court cannot be countenanced. The machinery provided under 1947 Act could not have been used for transfer of title to a person who was not owner of 10 the land forming subject matter of Consolidation scheme. The judgment and decree of Lower Appellate court is therefore unsustainable and deserves to be quashed and set aside. 10. In the present case the Appellants have not challenged the order passed under the said Act and therefore the present Authority is not applicable to the facts and circumstances of the present case. 11. The next point advanced by the learned counsel for the Appellants is that the Plaint as filed by the Respondents is liable to be rejected on the ground of non compliance of mandatory provisions of the Code of Civil Procedure i.e. Giving full description of the property. It is the case of the Appellants that the Respondents / original plaintiffs failed to give proper description of the suit property in the Plaint itself and therefore the Suit is not maintainable. It is crystal clear that the Respondents in Para 1 of the Plaint itself have given full description of the suit property. Therefore, there is no substance in the submissions advanced by the learned counsel for the Appellants that Respondents failed to give proper description of the suit property in 11 the Plaint as required by the Code of Civil Procedure. 12. In view of the above mentioned facts and circumstances and for the reasons stated herein-above, I do not find any substantial question of law involved in the present Second Appeal. Second Appeal is therefore, dismissed summarily with no order as to the costs. (K.K. TATED) JUDGE. asb/JUN09/sa905.08