sa617.07.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No. 617/2007 Sk. Amrullha Mohd Nazir & anr. ..vs.. Yashodabai w/o Chandrabhan Jogi (Dead) thr. LRs Pralhadrao Chandrabhan Jogi & ors. Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr. R. L. Khapre, Advocate for appellants. Coram: R. K. Deshpande, J. Date : February 3, 2010 1. This appeal is by the original plaintiffs who had filed Regular Civil Suit No. 18/1998 for declaration that they are the owners of the field survey No. 162/1 (Newly formed Gat No. 529) admeasuring 5 Acres 36 Gunthas Mouja Lakhpuri, Tq. Murtizapur, dist. Akola. The second relief is claimed for confirmation of the possession of the plaintiffs over the suit property and the third relief is of permanent injunction restraining the defendants from interfering the suit field. The facts leading to the case are as under. 2. The defendants moved an application purported to be an application under Section 155 of the Maharashtra Land Revenue Code for Carrying out corrections in consolidation proceeding. The Naib Tahsildar held that the sa617.07.odt 2 area of Gat No. 528 belonging to the defendant was to be corrected as 2 Hectare and 50 R (6 Acres 10 Gunthas) instead of 95 R. Similarly, the area of Gat No. 529 (belonging to the plaintiffs) be corrected as 1 Hector 30 R (3 Acres 10 Gunthas). This order of the Naib Tahsildar was challenged in appeal before Sub Divisional Officer, Murtizapur in RTS-62/ Lakhpuri/96-97. The said appeal was dismissed as barred by limitation by order dated 27.12.1996. The appellants/ plaintiffs, therefore, filed the suit for the aforesaid reliefs. 3. The suit was dismissed by the trial Court by judgment and order dated 30.11.2004 by holding that the plaintiffs have failed to prove that they are owners of the field Gat No. 529 of mouza Lakhpuri and are in peaceful possession of the same. In respect of the issue as to whether the defendants have disturbed the possession of the plaintiffs without any right, title or interest, finding is recorded in the negative. In Regular Appeal No. 148/2005 preferred by appellants/plaintiffs a question was raised as to whether the order passed by Naib Tahsildar is void ab initio and without jurisdiction, the appellate Court, after referring to the provisions of Section 155, has held that the order cannot be said to be beyond the purview of Section 155 of the sa617.07.odt 3 Maharashtra Land Revenue Code and the Naib Tahsildar had jurisdiction to decide the said application as it was not an application in respect of title of the plaintiffs. The appeal filed by the appellants/plaintiffs is dismissed. 4. Mr. Khapre, learned counsel for the appellants, raised following substantial questions of law out of the judgments passed by courts below :- (1) Whether in view of provisions of Section 13 of the Maharashtra Land Revenue Code, powers of Tahsildar only can be performed by Naib Tahsildar. Therefore, he is not competent to exercise powers of Collector vested in section 155 of Maharashtra Land Revenue Code and thus order passed by Naib Tahsildar is without jurisdiction. (2) Whether scheme of consolidation once comes in force and area of particular land is fixed in accordance with said scheme, said scheme can only be altered in accordance with provisions of Bombay Prevention of (Fragmentation & Consolidation of Holdings) Act, 1947 in view of provisions of section 32 read with section 35 of the Act, said scheme can be varied, annulled or altered by revisional authority i.e. Commissioner or by State Government consequently Naib Tahsildar cannot hold that area of particular gut number is less than what is stated as per the consolidation scheme?” sa617.07.odt 4 5. In respect of point no.1 urged by Mr. Khapre, learned counsel for the appellants, the appellate Court has recorded a finding that correction carried out in respect of area of Gat Nos. 528 and 529 is within the powers of Collector under Section 155. What Shri Khapre urges is that powers under Section 155 are required to be exercised by Collector and there cannot be delegation of powers to the Naib Tahsildar who has decided the matter. After going through the judgment and orders passed by Courts below as well as memo of appeal preferred before the appellate Court, it is apparent that no such point was raised regarding delegation of powers by Collector to Naib Tahsildar. Reference to section 13 of the Land Revenue Code has been made by learned counsel to urge as to what power can be exercised by Tahsildar. Whether powers conferred upon Tahsildar can be exercised by Naib Tahsildar is a question which involves resolution of disputed question of fact and hence cannot be gone into for the first time in the second appeal. Thus, question No. 1 raised by Mr. Khapre requires an adjudication over disputed question of facts giving rise to the said question hence it cannot be entertained at this stage of second appeal. sa617.07.odt 5 6. So far as the second question formulated by Mr.Khapre, learned counsel for the appellants, is concerned, the same has also not been raised before the Courts below which Mr. Khapre admits. If the arguments based upon the said question of law are to be accepted then under Section 31A of the Bombay Prevention of (Fragmentation & Consolidation of Holdings) Act, 1947, there is power of correction of clerical and arithmetical mistakes in the scheme. Mr. Khapre, learned counsel has placed reliance on the decision of the learned Single Judge of this Court in Mohammad Hanif Abdul Masjid Isane & ors ..vs.. Juned Mohammad Jalal & ors.; 2005 (1) Bom. C. R. 613 to urge that unless and until Notification is published in the official gazette under the provisions of Section 32, the order does not attend the finality. Mr. Khapre, learned counsel for the appellants, submits that the suit filed by the plaintiffs claims relief of injunction and unless the Notification is issued under Section 32, possession of the plaintiffs cannot be disturbed over the area of land on the basis of order passed under Section 31-A of the Bombay Prevention of (Fragmentation & Consolidation of Holdings) Act, 1947. However, there is no sa617.07.odt 6 foundation led for the same in the suit. Hence, the said question also cannot be entertained. 7. In the result, there is no substantial question of law which arises in this appeal. The appeal is, therefore, dismissed. No order as to costs. J UDGE kahale