( 1 ) sa222.99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 222 OF 1999 KANTRAO GOPALRAO AKOLKAR Age. 60 years, Occ. Agriculture, R/o. Akola, at present Malipura, Old Jalna, Jalna. .. Appellant VERSUS 1. Bhalchandra Gopalrao Akolkar Age. 71 years, Occ. Agri., R/o. Akola, Tal. & Dist. Jalna, now Hasnabad, Tq. Bhokardan, Dist. Jalna. .. Respondents 2. Sawala Hari Govindrao Akolkar, Since deceased per L.R.:- Shashikala Suhas Palodkar, Age. Major, Occ. Household, C/o. Ashok Tripure’s Wada, Nageshwarwadi, Near Mewad Hotel, Aurangabad. 3. Deorao Yadeorao Guthe, Age. 71 years, Occ. Agriculture, R/o. Akola, Tq. Badnapur, Dist. Jalna. 4. Karbhari Asaram Nagre, Age. Major, Occ. & R/o. As above. 5. Jagannath Gopalrao Akolkar, Age. 85 years, Occ. Pensioner, R/o. N-11, Mayur Nagar, House No.E-7, HUDCO, New Aurangabad. Mr. S.S. Bora h/f. Mr. S.C. Bora, Advocate for the appellant; None for the defendants. ( 2 ) sa222.99 CORAM : A.V. NIRGUDE, J. DATED : 19.09.2011 ORAL JUDGMENT :- 1. At the time of admission of the appeal following grounds mentioned in the appeal memo were held to giving rise to substantial questions of law. The grounds read as under :- “3. That the substantial question of law in the present case is as to whether the instant suit filed by the plaintiffs for possession of the suit lands by partition and separate possession thereof is barred by Section 36-A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, as has been observed by the First Appellate Court? 5. That it ought to have been appreciated that in view of the ratio of the judgment in case of Laxminarayan Ramdayal Gattani V/s. State of Maharashtra, reported in 1983, Bombay, page 233, the suit filed by the plaintiffs is perfectly maintainable and the bar of provisions of Section 36-A would not be attracted as, the decisions of the authorities under the Consolidation Act are per-se null and void and not binding on the Appellant, as no notice whatsoever was even given to the persons who are likely to be affected due to the changes to be made by the said authorities by implementing the scheme of consolidation.” 2. Both these grounds read together would in turn give rise to only one question of law as to “whether the ( 3 ) sa222.99 suit was maintainable or whether it is barred by the provisions of Section 36-A of the Bombay Prevention of Fragmentation of Consolidation of Holdings Act, 1947.” The facts of the case are all admitted and can be narrated as under :- 3. I will refer the parties by their designation in the Trial Court. The appellant here was the plaintiff No.2. His co-plaintiff was his brother Jagannath (present respondent No.5). Both these brothers filed a suit against their brother Bhalchandra (original defendant No. 1) and their uncle Savala Hari (original defendant No.2). Respondent Nos.3 and 4 were defendant Nos.3 and 4, who are purchasers of the suit property. It is common ground that Gopalrao–father of plaintiffs and defendant No.1 shared land Gat No.16 with his brother Sawala Hari. In the partition, which took place long back, they got equal shares admeasuring 2 Acres 30 Gunthas (in case of Sawala Hari–2 Acres 31 Gunthas bearing Survey No.16/3/2. The land which fell to the share of Gopalrao bore S.No. 16/3/1). Both were cultivating their shares. Plaintiffs’ father Gopalrao died in 1958. Due to death of Gopalrao in 1958, his share Survey No.16/3/1 admeasuring 2 Acres 31 Gunthas got devolved on his sons and each got 1/3rd share. However, the plaintiffs who were two sons of Gopalrao did not cultivate their shares and allowed their ( 4 ) sa222.99 brother Bhlachandra who resided in the village to cultivate the same for them. They used to receive share in the crops. 4. On the other hand defendant No.2 Sawala Hari in 1968 sold his share Survey No. 16/3/2 admeasuring 2 Acres 31 Gunthas to defendant Nos.3 and 4. In view of this, Sawala Hari lost all interest in his land. 5. In 1971 the scheme of Bombay Fragmentation and Consolidation of Holdings Act, 1947, was made applicable to this village and the lands were re-numbered at Gat numbers. Unfortunately, the area of original Gat No. 16/3/1, which was re-numbered as Gat No.10 was shown only as 1 Acre 37 Gunthas; whereas the land which fell to the share of Sawala Hari was renumber as Gat No.11, but was shown having area of 3 Acres 31 Gunthas. In 1979, for the first time, the plaintiffs made grievance that the area to the extent of 38 Gunthas “had gone to the share” of their uncle Sawala Hari and the same “should be given back” to them. They filed said suit for possession. Defendant Nos.3 and 4-the purchasers of Sawala Hari took up stand that this suit is not maintainable because the plaintiffs were contesting the correctness of the acts committed by the Consolidation Officer. The learned Judge of the First Appeal Court on this count held that ( 5 ) sa222.99 the suit was not maintainable. 6. Now only one substantial question of law arises which is “whether such suit was maintainable in the teeth of provisions of Section 36-A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act”. Said section 36-A reads as under :- “36-A. Bar of jurisdiction – (1) No Civil Court or Mamlatdar’s Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the State Government or any officer or authority. (2) No order of the State Government or any such officer or authority made under this Act shall be questioned in any Civil, Criminal or Mamlatdar’s Court.” 7. On the face of it, the crux of this suit is a grievance of the plaintiffs in respect of incorrect statement of the area of their land. Despite this, the learned Counsel appearing for the appellant placed reliance on the judgment in the case of Laxminarayan Ramdayal Gutani Vs. State of Maharashtra, 1983 AIR (Bom) 232. The ratio of this reported case is not applicable to the facts of this case. In the present case the plaintiffs admittedly did not approach the authorities of the Consolidation and made no grievance about the reduction in the area of their share. It seems that the plaintiffs as well as their brother Bhalchandra – respondent No.1 here ought to have made such grievance to ( 6 ) sa222.99 the appropriate authority. Had they made such grievance to the authorities in time, the authorities would have certainly looked into it and would have either increased the area or would have compensated them sufficiently. Defendant Nos.3 and 4 came before the Court with clean hands saying that before consolidation scheme was implemented, they purchased the area admeasuring 2 Acres 31 Gunthas which fell to the share of Sawala Hari and if in the consolidation scheme Gat number which is given to the land which they purchased is now shown to have more area. It cannot be said that they are guilty of making encroachment of the land lost by the plaintiffs and their brother Bhalchandra due to implementation of consolidation. 8. It is common knowledge that when consolidation scheme is implemented, the authorities not only re-number the lands but they decide about the area of newly formed Gats. This is necessary for implementing the scheme. When the party feels aggrieved because of any decision taken by the Consolidation Officer, he is entitled to make grievance under Sections 31-A and 32 of the Act. The provisions of the Act give elaborate procedure in Chapter III which is required to be followed for implementation of the consolidation scheme. In this case, it is admitted that in 1971 the lands in this ( 7 ) sa222.99 village were subjected to such scheme. Before the scheme is prepared, the Consolidation Officer gives notice to all land holders and then implements the scheme. The grievance ought to have been made to the Consolidation Officer or such authorities as may be empowered to hear the grievances etc. It seems that the plaintiffs filed this suit under misconception that they could raise this grievance in the Civil Court. The learned Judge of the First Appeal Court was right in holding that the suit did not lie and was not maintainable. I confirm that finding but give liberty to the appellant and his brothers Jagannath and Bhalchandra to make a representation to the appropriate authority under the Act. If such grievance is made and if the delay is one of the reasons for rejection of such litigation, the time consumed in this litigation may be favourably considered. The Second Appeal is dismissed. [A.V. NIRGUDE, J.] snk/2011/SEP11/sa222.99ok