hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE SECOND APPEAL NO. 664 OF 1990 1. Shri. Vasant Anyaba Jadhav, aged 40 years, Occ. Agriculturists. 2. Shri. Yashwant Anyaba Jadhav, Aged 32 years, Occ. service, Both resident of Borgaon, Taluka Koregaon, District : Satara. ... Appellants/ Orig.Defendants Versus 1) Krishan Narayan Jadhav (deceased) through heirs and legal representatives : 1(a) Smt. Khashibai Krishana Jadhav, age 60 years, 1(b) Shankar Krishna Jadhav, age 55 years, 1(c) Hanumant Krishna Jadhav, age 52 years, 1(d) Rama Krishna Jadhav, age 48 years, 1(e) Madhukar Krishna Jadhav, age 42 years, All adults, residing at and post Borgaon, Taluka Koregaon, District Satara. ... Respondents Mr. P.J. Thorat i/by Mr. R.A. Thorat, Advocate for the appellants. Mr. S.P. Thorat for respondent Nos. 1(a), 1(c) and 1(e). 1 hvn CORAM : A.S. OKA,J. DATED : NOVEMBER 17, 2011 ORAL JUDGMENT : The submissions of the learned counsel appearing for the parties were heard yesterday. Second Appeal is preferred by the original defendants and the original respondent is the plaintiff. Original plaintiff filed a suit for perpetual injunction in respect of the land admeasuring 20 gunthas on the Northern side of the land bearing gat no. 1026 (formerly bearing Survey No. 197/5) of village Borgaon. According to the case of respondent/plaintiff on 30th July, 1946, he purchased suit property from one Sonubai Jadhav by a registered sale deed for the price of Rs.200/- and since then he is in possession of the same. It is alleged that after the consolidation scheme, the suit property was numbered as Gat no. 1026 which was shown in the name of the son-in-law of said Sonubai but the ownership and possession continued with the respondent. It was contended that on an application made by the respondents before the Revenue Authorities, an enquiry was conducted by Circle officer in which first appellant stated that respondent was in possession of the suit property and he had no objection for giving 2 hvn separate Gat number to the suit property. The suit is based on the cause of action which arose on 20th December, 1978 when the appellants had allegedly obstructed the possession of the respondent. 2. A written statement cum counter claim was filed by the appellants/defendants. It was contended that the suit property was never in possession of the respondent/plaintiff. It was contended that the suit property was purchased by the first appellant on 14th April, 1967 from Bhiku and Jagu Jadhav. It was contended that after consolidation scheme, the suit property was allotted Gat no. 1026 and the same was allotted to the appellants. The counter claim for injunction was made by the appellants restraining respondent from interfering with the possession of the appellants over the suit property. 3. The trial Court held that respondent/plaintiff has failed to prove possession and ownership. The trial Court, therefore, proceeded to dismiss the suit and decreed the counter claim by granting injunction against the respondent. An appeal was preferred by the respondent/plaintiff in which District Court has interfered by setting aside the decree passed in the suit as well as in the counter claim and 3 hvn the suit has been decreed and counter claim has been dismissed. 4. The learned counsel appearing for the appellant submitted that the suit for injunction filed by the respondent is based on the title as the owner of the suit property. He submitted that admittedly the suit property described in the plaint bears Gat no. 1026 under the consolidation scheme under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1948 (hereinafter referred to as "the said Act"). He submitted that in the consolidation scheme, said Gat was alloted to one Dnyanu Krishnaji Bhosale. His submission is that the said Gat number 1026 was not alloted to respondent/plaintiff and in fact in the appeal preferred before the District Court, there are specific grounds taken being ground Nos. 10 and 11 to the effect that though respondent had applied to the Consolidation Officer for entering his name but the Consolidation Officer declined to consider the sale deed of the year 1946. He pointed out ground No. 11 in which it is stated that respondent moved the Settlement Commissioner, Pune for allotting separate Gat number in respect of the said land bearing gut no. 1026 which was allotted to Dnyanu Krishna Bhosale. He submitted that in view of section 24 of the said Act and the coming into force of 4 hvn consolidation scheme, the title vested in the said Dnyanu Bhosale to whom the same was allotted. He invited the attention of the Court to the finding recorded by the District Court on the aspect of possession. He submitted that finding of the appellate Court on the issue of possession is perverse. 5. The learned counsel appearing for the respondent/plaintiff submitted that on the basis of an application made by the respondent for ratification/modification of the consolidation scheme, the Circle Inspector was directed to hold an enquiry in which the first appellant admitted the possession of the respondent over the suit property and recorded his consent for allotting a separate Gat number to the suit property. He submitted that a certified copy of the said statement has been produced on record at Exh. 30. He submitted that it is not disputed that Dnyanu Jadhav was the original owner of the suit property and that the suit property was purchased by the respondent/plaintiff by sale deed dated 30th July, 1946 from the said Dnyanu Jadhav. He submitted that all along the respondent has been in possession and he has not been dispossessed by anyone. He submitted that before the Circle Officer, the first appellant admitted that respondent was in possession. He also 5 hvn invited attention of the Court to the material portion of the oral evidence. He submitted that once the property was vested in the respondent on the basis of sale deed of the year 1946, the consolidation scheme will not effect the transfer of ownership. He submitted that the enquiry before the Circle Officer was decided in favour of the respondent/plaintiff and therefore, consolidation scheme will have no effect. 6. The learned counsel appearing for the appellants relied upon the decision of the Apex Court in the case of Gurbachan Singh Vs. Bhag Singh and others, ((1996) 1 Supreme Court Cases 770) and contended that the appellate court has erroneously held that the counter claim was not maintainable as the suit is simplicitor for injunction and counter claim was very much maintainable. 7. I have given careful consideration to the submissions. According to the case of respondent/plaintiff, he purchased the suit property from one Sonubai, the widow of the original owner Dnyanu Jadhav by registered sale deed dated 21st July, 1946. The appellants relied upon the sale deed dated 14th July, 1967 executed in the favour of first 6 hvn appellant. The said sale deed was executed by Bhiku and Jagu Jadhav. It was contended that the said Bhiku purchased the suit property from Dnyanu Bhosale. It must be noted here that it is undisputed that consolidation scheme was brought into force in which the suit property became part of Gat/Block no. 1026. As per the consolidation scheme, one Dnyanu Bhosale was the owner and allottee of the said Gat No. 1026. Perusal of the memorandum of appeal filed by the respondents before the District Court contains two specific grounds namely ground no. 10 and 11. In ground no. 10, it is contended that the Consolidation Officer did not take cognizance of the sale deed of the year 1946. In ground No. 10 it is stated that the consolidation scheme was implemented in the year 1969-70. In ground No. 11, the respondent has taken a specific stand that the said Gat number 1026 was allotted to Dnyanu Bhosale in the year 1970 and therefore, Settlement Commissioner was moved by the respondent. Thus, according to the case of the respondent, consolidation scheme came into force in the year 1969-70 and according to consolidation scheme the said Dnyanu Bhosale was the allottee and owner of land Gat no. 1026. Nothing is produced on record to show that the consolidation scheme was varied and/or 7 hvn rectified and name of said Dnyanu Bhosale was deleted. It is sought tobe contended by the learned counsel for the respondent that the Circle Officer conducted an enquiry on the basis of an application made by the respondent. However, the Circle Officer had no power to modify or correct the consolidation scheme. Thus on the face of it, in view of the consolidation scheme, the respondent/plaintiff can not claim title in respect of the suit property. 8. As far as possession is concerned, it appears that in the Inquiry held by the Circle Officer of Rahimatpur, a statement of the first appellant was recorded which is at Exh. 30. In the statement, the first appellant admitted that the suit property was in possession of the respondent. The first appellant whose statement was recorded did not enter into witness box to offer explanation regarding his statement recorded by the Circle Officer. 9. As far as the possession is concerned, the appellate Court has elaborately considered the evidence including the said statement recorded by the Circle Officer in which the first appellant had admitted the possession of the respondent/plaintiff. The appellate Court has rightly 8 hvn observed that the first appellant kept himself away from the witness box. The appellate Court has also noted the factual aspect that on the basis of the report of the Circle Officer, mutation entry No. 445 was certified. Apart from the mutation entry, the appellate Court has relied upon the notice at Exh. 46 issued by the Land Acquisition Officer, Satara in respect of the acquisition of the part of said land bearing Gat no. 1026 which was addressed to respondent/plaintiff. 10. In view of the aforesaid position, it is not possible to interfere with the finding of the appellate Court that the appellants are not in possession and that respondent is in possession. 11. The suit filed by the respondent is based on title as the owner. In view of coming into force of the consolidation scheme, the respondent cannot claim title unless consolidation scheme is rectified in as much as admittedly neither respondent nor his predecessors were allottees of property bearing gat no.1026 under the consolidation scheme. Though the suit is for injunction, it is based on title and unless title is established, the respondent is not entitled to equitable and discretionary relief of perpetual injunction. 9 hvn 12. Therefore, the decree of the appellate Court to the extent to which a decree is passed in the suit will have to be set aside. The effect of the impugned decree is that the counter claim made by the appellants has been dismissed. That part of the decree cannot be disturbed as the prayer made by the appellants in the counter claim is for injunction against the respondent/plaintiff. As held earlier, the respondent is in possession. 13. Hence, I pass the following order : 1) That part of the impugned judgment and decree of the appellate Court by which Regular Civil Suit No. 7 of 1979 was decreed is quashed and set aside and Regular Civil Suit No. 7 of 1979 stands dismissed. 2) That part of the impugned judgment and decree by which the counter claim made by the appellants is dismissed is hereby confirmed. 3) The appeal is partly allowed on the above terms. There shall be no order as to costs. (A.S. OKA,J.) 10