1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 651 OF 2008 1 Baban Tukaramshashtri PUjari age 68 years, occ. agril r/o Shewala, Tq. Kalamnuri Dist. Hingoli. 2 Prashant s/o Baban Pujari age 43 years, occ. agri. r/o Shewala, Tq. Kalamnuri Dist. Hingoli .. APPELLANTS VERSUS 1 Dasrao s/o Tukarampant Kanhegaonkar age 72 years, occ. retired Tahsildar & Agril., r/o Shewala, Tq. Kalamnuri Dist. Hingoli. 2 The State of Maharashtra Through The Collector, Dist. Hingoli 3 The Deputy Director of Bhommi Abhilekh Aurangabad (Up-Sanchalak, Bhoomi Abhilekh) .. RESPONDENTS Mr. A.S. Deshmukh, Advocate for the appellants. Mr. S.P. Deshmukh, Advocate for respondent no. 1. Mr. B.V. Wagh, AGP for respondent nos. 2 and 3. ===== CORAM : R. M. BORDE, J. DATE : 21st JANUARY, 2010 ORAL JUDGMENT : 2 1 Heard Mr. A.S. Deshmukh, learned counsel for the appellants, Mr. S.P. Deshmukh, learned counsel for respondent no. 1 and Mr. B.V. Wagh, learned AGP for respondent nos. 2 and 3. 2 Admit. With the consent of the parties, the matter is taken up for final disposal at admission stage. 3 Substantial question of law raised in the instant second appeal is : . Whether the jurisdiction of the civil court to deal with the issues of title and possession of the disputed land is ousted in view of the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act ? 4 Respondent no. 1 / original plaintiff instituted suit bearing Regular Civil Suit no. 106/1993 claiming decree of declaration, perpetual injunction and possession. Plaintiff claims that the land bearing survey no. 13 situate at village Kanhegaon, Tq. Kalamnuri was owned by five persons including father of the plaintiff. On demise of his father, plaintiff inherited two anna share in the landed property which his father was possessing. It is further contended that an area to the extent of 81 R i.e. 2 anna share was purchased by him from another share holder of survey no. 81 namely Prabhakar by virtue of registered sale-deed dt. 2-4-1987. Thus, plaintiff 3 became owner of four anna share in the property. Defendant nos. 3 and 4 are also entitled to certain share in the property. It is contended that possession of the plaintiff was shown in respect of four anna share till the year 1991. However, after he collected the 7/12 extracts of the landed property on 22-10-1991, he came to know that an area to the extent of 81 R is shown less in his possession and the same is found to be amalgamated in the share of defendant nos. 3 and 4. Defendants have half share in the landed property i.e. to the extent of 8 acres and 2 ½ gunthas. However, the same is shown to have been increased by 1 acre and 38 ½ gunthas approximately i.e. to the extent of 81 R. Plaintiff brought this fact to the notice of the concerned authority, however, there was no response. Plaintiff as such claims a decree of perpetual injunction and in the alternative further claims that if he is found in possession of 81 R land, then he should be put in possession. 5 Defendants have controverted the contentions raised by the plaintiff contending that they are not possessing an area to the extent of 8 acres and 2 ½ gunthas, however, their holding is to the extent of 4 H and 1 R and the said area is received by them during the partition which was effected earlier. It is contended that inferior land was allotted to them and as such, they 4 have been given some excess area during partition which was effected earlier. Defendants further contend that in view of implementation of the consolidation scheme in the year 1994, the prayer made by plaintiff in the suit cannot be granted by the civil court. 6 Trial court after receiving evidence led by the parties came to the conclusion that the plaintiff has proved his entitlement to the suit property, however, he was not found in possession of 81 R land, the disputed portion, as such, trial court considering the prayer made by the plaintiff, directed that he be put in possession. Trial court has also issued directions to the consolidation authority to correct the entries appearing in the consolidation record in respect of survey no. 13. Judgment and decree passed by the trial court was subject matter of challenge before the first appellate court in Regular Civil Appeal no. 16/2002 presented by the defendants. The first appellate court after hearing both the sides was pleased to dismiss the appeal in view of judgment and decree dt. 13-6-2008. 7 Mr. A.S. Deshmukh, learned counsel for the appellants placing reliance on provisions of section 36(A) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act contends that the 5 jurisdiction of the civil court to deal with the questions which are required to be settled, decided or dealt with by the consolidation authority is barred. It is his contention that it is the domain of the consolidation authority to vary the scheme in view of section 32 of the Act. It is further contended that it is not within the competence of the civil court to decide the issue of title and further to grant relief of delivery of possession of the property after implementation of the scheme of consolidation in the village. In order to understand the controversy involved in the matter, it has to be seen as to whether the question raised in the matter is in respect of settling, deciding or dealing with any question which by or under the Consolidation Act is required to be settled, decided or dealt with by such authorities. Considering the pleadings raised in the plaint and defence raised by the defendants in the written statement, it does not appear that the questions raised in the suit are of nature which are required to be settled, decided or dealt with by the consolidation authority. Plaintiff has come to the court with a contention that as per the old revenue record, his possession over an area to the extent of 8 anna share is amply proved. On consideration of the relevant revenue record, the trial court has recorded finding that the possession of 8 acres of land by the plaintiff i.e. half share alongwith his brother Krishna is well supported by old revenue records for the years 6 between 1978-1979 and onwards. So far as the disputed area of land i.e. 81 R land out of survey no. 13 is concerned, the same is admittedly purchased by plaintiff by virtue of sale-deed dt.2-4-1987 from Prabhakar, one of the share holders of old survey no. 13. Defendant no. 3 Baban and defendant no. 4 Prashant have half share in the land i.e. to the extent of 8 acres and 2 1/2 gunthas. There is no basis for recording names of defendant nos. 3 and 4 in respect of an area to the extent of 4 H and 1 R. Defendants have also not satisfactorily explained as to how they acquired large area when their entitlement to the property was only to the extent of half share i.e. 8 acres and 2 1/2 gunthas. It is not the case put up by the defendants that during implementation of the scheme of consolidation, some excess area has been allotted to them with the consent of the share holders of the property, neither such record is placed before the court. However, defence of the defendants is that during the earlier partition effected in respect of land survey no. 13, they have been allotted 4 H and 1 R land. Contention raised by the defendants in the written statement in respect of earlier partition and putting them in possession over excess area has not be substantiated by them. Contention raised by the defendants to the effect that in view of implementation of the scheme of consolidation, the issue in respect of entitlement of the parties to an area is whether in excess or otherwise will not 7 be within the domain of the civil court and the issue, if any, shall have to be addressed by the consolidation authority, cannot be accepted. It is not the case of the either parties that they have been put in possession of the respective areas as claimed by them during the implementation of the scheme of consolidation and as such the bar as pleaded by the defendants will not be attracted. 8 Learned counsel for the appellants / defendants has invited my attention to a judgment reported in 2001(3) Bom.C.R. 27 in the matter of Ashok Yeshwant Dhumal vs. Shankar Maruti Dhumal. The question formulated by the court for consideration of the matter was as to whether the owner is entitled to be in possession of the holding to which he is entitled under the scheme. In the reported matter claim was raised in respect of possession of the disputed land while implementing the scheme of consolidation and such error was requested to be corrected by approaching the civil court. In the peculiar facts and circumstances of the case, the court held that when the party comes to the court contending that certain acts are done while implementing the scheme and change in possession is effected during implementation of the scheme, the issue is to be addressed by the consolidation authority and the jurisdiction of the civil 8 court to deal with such issue is barred. Such is not the case in the instant matter. Both the parties claim their entitlement to the possession of the respective area on the basis of previous possession. Neither of the parties have pleaded or proved that any change is effected during implementation of the scheme of consolidation in respect of status of the possession of the parties. In this view of the matter, the ratio laid down in the reported judgment is not attracted to the facts of the instant case. Learned counsel for the appellant has also invited my attention to a reported judgment in the matter of Mohammad Hanif vs. Juned Mohammad Jalal reported in 2005(1) Bom.C.R. 613. The facts in the reported matter are totally different and as such the ratio laid down in the said judgment is not attracted to the instant case. In this view of the matter, I am of the considered opinion that in the instant matter civil court has rightly exercised jurisdiction and answered the issue touching the title and possession of the parties in relation to the disputed subject matter. 9 Another argument that has been advanced by learned counsel for the appellant needs serious consideration. Trial court while passing decree in favour of plaintiff has issued directions to the consolidation authority to correct the record in accordance with the decision rendered by the civil 9 court. I have serious doubt as to whether the civil court is competent to issue such directions. In view of the provisions of Consolidation Act, it would be the domain of the concerned authority to correct the errors appearing in the scheme. Consolidation authority would be obliged to take into account the finding recorded by the civil court while dealing with the matter and while effecting corrections under the scheme if any application is tendered in that regard by either of the parties. Directions contained in paragraph no. 3 of the operative portion of the order issued by the trial court is beyond the competence of the court and as such those directions are quashed and set aside. In this view of the matter, appeal is allowed to the extent specified above. Rest of the decree passed by the trial court which has been confirmed by the first appellate court stands confirmed. In view of the peculiar facts and circumstances of the case, there shall be no order as to costs. 10 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/sa651.08.odt