1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.954 OF 2009 1. Haribhau s/o Narayan Kale, Age 55 years, Occu:Labour, r/o. Mohadi, Tq. Jintur Now at Gogalgaon, Tq. Manwat, District Parbhani, AND OTHERS. ...APPELLANTS (Orig.Defendants) VERSUS 1. Bapurao s/o Munjaji Kakade, Age 68 years, Occu: Labour, r/o. Gogalgaon, Tq. Manwat, District Parbhani. AND OTHERS. ...RESPONDENTS (Orig.Plaintiffs) ... Mrs. M.A.Kulkarni, Adv., for the appellants. Mr. K.S.Chavan, Adv., for respondent no.1. ... CORAM: K.U. CHANDIWAL, J. DATE :21-4-2010 *** PER COURT : 1. Dismissal of RCS No.2/2001 before the learned Civil Judge, Junior Division, Sailu, made the plaintiffs to approach the learned District 2 Judge, Parbhani, in RCA No.174/2003. Learned District Judge, by his order dt.6.12.2006, which reads as under, decreed the suit. "i) Appeal is partly allowed. ii) Impugned judgment dismissing plaintiffs suit by lower Court is set aside. (iii) The plaintiffs suit is decreed. (iv) The defendants are restrained from obstructing or interfering plaintiffs possession over suit lands till the plaintiffs are evicted by the revenue authorities. (v) The revenue authority and government shall be bound by above judgment about plaintiffs possession over the suit land. (vi) The appellants are directed to pay deficit court fees Rs.200/- for suit and deficit court fees of Rs.400/- in the appeal within 8 days. (vii) Parties to bear their own costs. (viii) Record and proceedings be sent back to the lower Court." This order is questioned by the defendants in the Second Appeal. 3 2. Learned Counsel for the appellants ( defendants) submits that the substantial question of law in the matter is, while reversing the judgment of the Court of first instance, the learned first appellate Court did not discuss the evidence and it exceeded its jurisdiction while issuing directions in clause (v) of the above order, contrary to provisions of Section 4 of the Bombay Revenue Jurisdiction Act, 1876. 3. This litigation certainly appears to be a luxury litigation, as Governments property - Alluvial land is in controversy without State being a party. There was allotment by the competent authorities of the Government to the plaintiffs which they flashed before the learned Judge with a proved document. There was no controversy over such allotment. The possession to the suit land assented by defendant is two Panchnama Exh.83 and 88. The Court of first instance found that the panchnama by itself will not render valid possession to the defendant, however, dismissed the suit. 4. The first appellate Court thoroughly discussed the evidence, the admission to which the first appellate Court considered to be feeble, accepting defendants possession was also dealt with by the learned District Judge in paragraph no.14 while dealing with the evidence 4 and PW No.1 appearing at paper book page No.24. The admission given in the evidence by PW No.1 was not relating to the defendants but it was in relation to Narayan Vithoba, Nagoji Munjaji, Ashroba Balasaheb, Gangaram Raghoji, Keshba Raghoji, Vishwanath Annasaheb and Ganpat Tukaram that those persons were allotted portion from land Gat Nos. 2, 3 and 4. Thus, the first Court certainly erred in putting in the mouth of PW No. 1 that he has accepted about the possession of the defendants over the property. 5. The substantial question of law tried to be formulated by the learned Counsel, needs its consideration. The order of the learned District Judge is verbatim reproduced above. The order will have to be read as a whole; it cannot and need not be dissected and segregated. Clause (iv) of the order has to be read in juxtaposition to clause no.(v) and at no stretch the learned Judge mean that the Revenue Authorities are clamped perpetually. Learned Judge observed that the defendants are restrained from obstructing or interfering plaintiffs possession over the suit land till the plaintiffs are evicted by the Revenue Authorities. This necessarily means, to follow due process of law by the competent Revenue Authorities. The possession of the plaintiffs, even if it is illegal, the defendants, as third parties have no 5 right to agitate, it is for the Government, rather, the Revenue Authorities, who will independently deal with the situation. The protection, as indicated above, conveys correct message; it cannot be presumed, the Government officials shall be influenced by clause (v) of the above order. The controversy of plaintiffs possession being pending before learned Minister, it is for authorities to deal/decide. This is particularly if Plaintiffs are in long drawn unauthorized possession and revenue jurisdiction having been exercised by both the parties, the matter being pending before the learned Minister about deciding the rights or allotment to the respective applicants. Second Appeal does not project any substantial question of law to be formulated, it is dismissed. No costs. Sd/- [K.U. CHANDIWAL, J.] agp/954-09sa