1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.38 OF 1988 Pandurang Dattatraya Potdar Since deceased, per L.Rs. 1) Govind Murlidharrao Badve Age : 51 Yrs., (since deceased per L.Rs.) 1A-i)Aruna Govindrao Badve Age: 52 Yrs., occu. Household 1A-ii)Amruta Govindrao Badve Age: 20 Yrs., occu. Student; 1A-iii)Anand Govindrao Badve Age: 26 Yrs., occu. Service, 1A-iv)Amol Govindrao Badve Age: 22 Yrs., occu: Business, Agril. All above r/o Umarga, Tq. Umarga, Dist.Osmanabad. 1A-v)Ashwini Sunilrao Gujalkar Age: 30 Yrs., occu.Household, R/o Beed, Tq. & Dist. Beed. 1A-vi)Anjali Vithalrao Karvankar Age: 28 Yrs., occu.Household, R/o Hyderabad, Dist.Hyderabad. 1A-vii)Asmita Laxmikant Parandekar Age: 24 Yrs., occu.Household, R/o Latur, Dist. Latur. 1A-iv – Amol Govindrao Badve is GPA of Applicant Nos. 1A-i to 1A-vii. 2 2) Rajendra Murlidharrao Badve Age: 44 Yrs., 3) Ravindra Murlidharrao Badve Age: 38 Yrs., All Agriculturists, R/o Hussain Basha Galli, Omerga, Tq. Omerga, District Osmanabad. .. APPELLANTS (orig.L.Rs. Of orig.plaintiff) VERSUS 1) Tahsildar, Tahsil office Paranda, Dist.Osmanabad. 2) The State of Maharashtra Through Collector, Osmanabad. .. RESPONDENTS (orig.defendants) ***** Mr.S.S.Bora Adv h/for Mr.S.C.Bora, Advocate for Appellant; A.G.P. For Respondent Nos. 1 and 2. ----- CORAM : K.U.CHANDIWAL, J. DATE : 15th June, 2009. ORAL JUDGMENT : Heard Counsel and AGP extensively. 2) The appellant feels aggrieved by the 3 dismissal of RCS No.242/1980 and also RCA No. 163/1986 by the learned District Judge, Osmanabad, who confirmed the decree of the Court of first instance. 3) On 8th March, 1988, the appeal was admitted without formulating any substantial question of law. This may add as one of the straw on the back of the camel against the appellant. 4) Learned Counsel contends that the approach of learned CJJD and that of the Appellate Court is apparently contrary to the settled position of law. The exclusion of civil Court’s jurisdiction, as carved out under Section 41 of the Maharashtra Agricultural lands (Ceiling on Holdings) Act, 1961, should not have been stretched to oust the rights accrued to the plaintiff and particularly, since the plaintiff has been deprived by the orders under challenge, making him landless. This, according to the Counsel, frustrates the very scheme under the Ceiling Act, which does not contemplate making a person landless. 5) The Counsel further urged that there should be de novo inquiry in the matter, for that purpose, the matter needs to be remanded to the learned CJJD. 4 6) Learned AGP, while opposing the appeal, invited my attention to paragraph 12 of the judgment of the first Appellate court, where the learned first Appellate Court referred to Special Civil Application No. 1770 of 1975 preferred by the plaintiff before this Court, making grievance regarding inclusion of Survey No.17 while considering his holding. This Court, while negativing the contention of the plaintiff, has observed on 14.1.1980, that, Survey No. 17 was rightly treated as part of holding of petitioner. The rights of the plaintiff to challenge the inclusion of survey no. 17 has been put with a seal of this Court in CRA No. 1770/1975, which naturally operates as res judicata and consequently the principle of res judicata, being a procedural provision, and as it is not pointed that the jurisdictional question is wrongly decided, the principle of res judicata will come in the way of present proceeding. 7) It is well established principle that though statute creates a bar of jurisdiction of Civil Court, which excludes it to entertain any proceeding, if there is nullity of order or the orders by the authorities are in excess of jurisdiction, Civil Court has jurisdiction to entertain suit to set the things in right perspective. It was in this scenario, the plaintiff was expected to highlight that the 5 court’s jurisdiction to entertain the suit was available to him though there was adequate and satisfactory alternate provisions in the Ceiling Act, of getting remedies and redressal to different forums. It could not be seen that statutory provisions are by-passed by Authorities or fundamental principles of judicial procedure are not applied 8) The other glaring aspect in the matter is plaintiff asserts that it was Anusayabai, his sister, who was the legitimate owner of the property land Survey No.17, based on a Will-deed executed by plaintiff’s mother in her favour. Since Anusayabai was not heard, according to plaintiff, her rights are jeopardized and hence illegality. 9) The plaintiff ignored that the suit is not by Anusayabai, but it is by himself. Anusayabai is not party to the proceeding before this Court. Consequently, plaintiff cannot be allowed to agitate that he has been a aggrieved person by any action taken by the revenue authorities. 10) That apart, as learned first Appellate court has observed in paragraph 12 of its judgment, the plaintiff being aggrieved by the orders of the Ceiling authorities had remedies 6 before the Appellate Court or revisional forum, which he availed and failed. Consequently, he could not have resorted to the remedies in civil court. 11) The plaintiff’s contention that the matter needs to be remanded cannot be accelerated and acted upon. The findings recorded by both the courts are in tune with the recognized legal system. Exclusion of civil court’s jurisdiction, being spelt out in Section 41 of the Act, the reliance placed by the learned Counsel to the Judgment in the matter of Laxminarayan Ramdayal Gutani Vs. State of Maharashtra – AIR 1983 Bombay 232, therefore, will not be applicable to be coined and acted upon. Apparently, the judgment in the matter of Laxminarayan’s case is on different pedestal, which remotely carves out any similarity to the facts in present proceedings. Consequently, Second Appeal lacks merit, it is dismissed. ( K.U.CHANDIWAL ) JUDGE bdv/sa38.88