1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.286 OF 2007 WITH CIVIL APPLICATION NO.587 OF 2007 Shri Shankar Maruti Adhate : Appellant versus Shri Mahadu Shankar Vinode & ors. : Respondents. Shri.Madhav Jamdar for the Appellant. Shri.S.M.Gorwadkar for Respondent Nos.1 to 6 CORAM : R.M.SAVANT, J. DATED : September 17, 2008 P.C. 1. This Second Appeal takes exception to the Judgment and Decree dated 08/03/2007 passed by the learned Ad-hoc District Judge-12 Pune by which the Judgment and Decree dated 18/03/2004 passed by the learned Civil Judge, Junior Division, Vadgaon, Maval came to be set aside. 2. The bone of contention in the proceedings is an area of 31 2 R out of the larger area of 1 Hector and 13 guthas in Block No.353 bearing Survey Nos.141/2 and 141/3 of village Sate. The Respondent No.1/Plaintiff had filed a suit for declaration and perpetual injunction in respect of the said suit property. It was the case of the Plaintiff that he had purchased the said property by two sale deeds dated 20.01.1949 and 22.01.1949 from one Dhanraj Poonamchand Bafna and Manikchand Rajmal Bafna and since then he was cultivating the said suit lands and was in possession thereof. It was further the case of the Plaintiff that his cousin Rambhau Maruti Vinode, after the consolidation scheme came into force, managed with the Revenue Authorities under the Act known as the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short “the said Act”) and got his name entered as a owner of the said suit property. Thereafter the said Rambhau sold the said suit property to the Appellant herein. The Plaintiff, having come to know of the intention of the said Rambhau, issued a public notice in the year 1989. In spite of the same, it is the case of the Plaintiff that, the Defendant purchased the said property. The Plaintiff filed the said suit on the ground that on the basis of the said sale deed the 3 Defendant i.e the Appellant herein tried to disturb his possession. 3. The Defendant i.e the Appellant herein filed his written statement and contended that he had purchased the said 31 R land out of the suit property from the said Rambhau Vinode. He denied the ownership of the Plaintiff over 1 Hector and 13 Gunthas of land. He also denied that he was disturbing the possession of the Plaintiff over the suit land. It was the case of the Defendant that originally an area of 1 Hector and 13 gunthas was jointly owned by the Plaintiff and the said Rambhau Vinode and, on the consolidation scheme coming into force, an area of 31 R out of the said land was allotted to the share of the said Rambhau. It was further the case of the Defendant that by sale deed dated 12/10/1990 he had purchased the said 31 R from the said Rambhau and thereafter he had been in possession and cultivating the said land, whereas the Plaintiff was in possession and was cultivating the remaining land. The Defendant also contended that the Plaintiff had suppressed the fact of filing of Regular Civil Suit No.82 of 89 by him earlier. 4 4. The parties went to trial. The trial Court on the basis that there was no material on record to Rambhau's ownership as regards 31 R justaposition to the evidence adduced by the Plaintiff that he had purchased the said property by two sale deeds, and therefore, proved his title to the land in question, dismissed the suit filed by the Plaintiff. 5. Aggrieved by the dismissal of the said suit by the trial Court by its Judgment and Order dated 18/03/2004, the Plaintiff filed Regular Civil Appeal No.55 of 2004. The Lower Appellate court on the basis that there was no material on record to prove the Rambhau's title to the said land, admeasuring 31 R and considering the fact that the Plaintiff had based his title on the sale deeds executed in the year 1949 held that the trial Court had erred in dismissing the said suit merely on the ground of the revenue entries which were made purportedly on the basis of the consolidation scheme. The Lower Appellate Court also recorded a finding that the Plaintiff was in possession of the said area of 31 R and, therefore, granted both the declaration as well as the injunction in favour of the Plaintiff as claimed for in the said suit. 5 6. It is sought to be contended on behalf of the Appellant that in the light of the fact that the Plaintiff had assailed the consolidation scheme on the ground that a fraud was played on the Plaintiff, the suit as filed was barred in view of the provisions of Section 36A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. It is further contended that the declaration granted by the Lower Appellate Court militates against the provisions of the said Act. 7. Per contra, it is submitted on behalf of the Respondent, relying upon the Judgment of the learned Single Judge of this Court, in the matter of Sidagonda Avagonda Sardar Patil and another v/s. Bhimgonda Kadgonda Kushappa Patil deceased by his heirs Babgonda @ Kadgonda B.K.Patil and others, reported in 2002(2) Mh.L.J. 623, that inter-se dispute between the original owners as regards the title to a particular block can be settled by the Civil Court. In the said Judgment Section 31(1) of the said Act had come for consideration before this Court and, in the said context, the learned Single Judge had held as follows :- 6 “Assuming that the plaintiff is not protected by Section 31(3) of the Act, section 31(1)(b) cannot be interpreted to say that the plaintiff had first to approach the Collector for sub-division or transfer or for possession of his suit land by breaking away from the block No.1234. It would be convenient to reproduce section 31(1) as below:- 31(1) Notwithstanding anything contain in any for the time being in force, in holding allotted under this Act, nor any part thereof shall, save as otherwise provided in this section --- (a) be transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, lease, or otherwise; or (b) be sub-divided, whether under a decree or order of a Civil Court or any other Competent Authority, or otherwise, so as to create a fragment, without the previous sanction of the Collector. Such sanction shall be given by the Collector in such 7 circumstances and subject to such conditions as may be prescribed.” The section is crystal clear as far as the sub-division of the block is concerned. If the plaintiff had sought possession of the suit land on the basis of his title that he was the owner of the said piece of land under the registered Sale Deed and as his title was under challenge he had to approach the Civil court to establish his title under the registered Sale Deed. The said dispute could not have been decided or adjudicated by the Collector. It was the Civil Court alone that had jurisdiction to adjudicate and adjudge the title of a party. The plaintiff had rightly approached the Civil Court with a plea that he was the owner of the suit land but he was deprived of the suit land by the defendants who have questioned his title under the Sale Deed and the defendants had also questioned the title of Avubai. All these disputed questions of facts in respect of the title of the plaintiff could not have been adjudicated and determined by the Collector. The plaintiff by approaching the Civil Court has rightly got established his title to the suit land. After getting a decree in respect of the title of the suit land he has to approach the Collector under Section 31(1)(b) for the purpose of actual physical sub-division from the 8 existing block No.1234 by breaking-up of the suit land No.241/1B. Even after establishing his clear title he cannot straightway get the possession of the suit land as to get possession of the suit land would mean sub- division of the existing block No.1234. In these peculiar circumstances he has to approach the Collector to get the physical sub-division of the Block No.1234. It is significant to note that under section 31 the block can be sub-divided under a decree or order of a Civil Court or any other Competent Authority which contemplates a decree prior to the actual physical breaking-up of the block. The moment the title is established by the plaintiff in this suit he will have to seek physical actual sub-division of the block by approaching the Collector. Such sub-division cannot be done without previous sanction of the collector. The authority of the Collector begins after the decree of the Court and before the physical actual sub-division of the law. It has to act on the basis of the title established by the plaintiff. It, therefore, cannot be said that the plaintiff had to first approach the Collector for seeking previous sanction for sub-division of the block and thereafter he had to approach the Civil Court to get possession of the suit land. Had he done so then perhaps it would have been argued that he had first to establish his title before the Civil Court and that 9 collector could not decide the rights or title of the parties. In my opinion the plaintiff had acted rightly and correctly by approaching the Civil Court to get his title cleared and established and thereafter he can seek sanction of the Collector for breaking-up of the block No.1234 physically. I am not able to agree with Shri Pandit when he goes to the extreme that no previous sanction is necessary for his client. We have to harmonise the provisions of the act. The sub-division of the land cannot be automatically done soon after the plaintiff had established his title. He has to approach the Collector with the decree in his hand and request the collector to grant sanction before breaking-up of the block so that he would get actual possession of the suit land in accordance with the decree of the Civil Court. 8. It is further submitted on behalf of the Respondent that if the Defendant was pressing his claim on the basis of the consolidation scheme implemented for the said village in the year 1976, it was for the Respondent to approach the authorities under the said Scheme for ousting the Plaintiff from the land in question. 10 9. Having considered the rival contentions , in my view, there is merit in the submissions advanced on behalf of the Respondent/Plaintiff. The Respondent/Plaintiff had filed the said suit for declaration and for protecting his possession and in the said context had made the averments in the plaint. The Respondent/Plaintiff was not in any manner seeking re-opening of the said consolidation scheme as what he was seeking, is the protection of his possession on thebasis of valid title. It was for the Defendant who lays much store on the consolidation scheme to approach the authorities for possession of the land in question if he is so aggrieved. 11 10. The Lower Appellate Court on the basis of the material on record held that the Plaintiff had proved his title to the land in question as also recorded a finding as regards his possession. In my view, the challenge raised in the above Second Appeal does not involve any substantial question of law. The Second Appeal is accordingly dismissed. In view of the dismissal of the Second Appeal, the Civil Application No.587 of 2007 does not survive and the same is disposed of as such. [R.M.SAVANT, J]