1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1732 OF 2004 WITH CA NO.12490/2010 Amiruddin s/o Faiyazuddin (died by L.Rs.) 1) Tajuddin s/o late Amiruddin and others. - APPELLANTS (orig.plaintiffs) VERSUS 1) The State of Maharashtra & others - RESPONDENTS (orig.Defendants) ***** Mr.AS Bajaj,Advocate for Appellants; Mr.SD Kaldate, AGP for Resp.Nos. 1, 4 and 5. Mr.DV Soman, Adgocate for Resp.Nos.3-A and 6. ----- CORAM : K.U.CHANDIWAL, J. DATE : 28th April, 2010. PER COURT : 1) Heard learned Counsel for the respective parties extensively. At the stage of admission of the Second Appeal, both the sides read the evidence, position of law and addressed with the several documents, on record and off the record. 2 2) RCS No.1169/1994 came to be dismissed on 28th July, 2000 by the learned 4th Joint Civil Judge, Senior Division, Aurangabad. The appeal, being RCA No.291/2000 was also dismissed by the learned Ad hoc Additional District Judge, Aurangabad. dated 25.10.2002 and both these exercises are debated and questioned by the plaintiffs in the Second Appeal. 3) The controversy revolves to agricultural field Survey No.2 (old Survey No.79), admeasuring 23 acres and 13 gunthas situate at village Fatiyabad Tq. Gangapur. The plaintiffs assert that it is a Service Inam land, while the defendants assert that it was a Gairan (pasture) and allotted to the Grampanchayat. It is pointed, a Dargah is situate in said land Survey No.2 in an area, admeasuring 600 ft.x 380 ft. (at some places it is referred as 350 ft.) 4) The learned Counsel for the respondents (defendants) submits, that independently the land Survey No.78 was an Inam land meant for showering the services to the Dargah. However, taking advantage of an identical acreage of Survey no. 78 with Survey No.2, a Gairan, is tried to be mixed and a camouflage is tried to be envisaged. This is because suit land is situate at Mumbai- Aurangabad road with high commercial 3 potentiality. 5) The learned Counsel for the appellants submits, that the prayers in the plaint are lost track by the first appellate Court, as the first Appellate Court did not answer the issues in juxtaposition to the prayers. His grievance is, as the learned first Appellate Court is a fact finding court, it should have discussed the evidence vis-a-vis the documents in detail or should have formulated the points, in tune with prayers He urged to remand the matter to the learned first Appellate Court for an opportunity to the appellant to address the issues germane in the matter. The learned Counsel says, if the first Appellate Court fails to perform its duty, the scope in the Second Appeal should not be misused. Learned Counsel for the appellants referred to the Judgment in the matter of Santosh Hazari Vs. Purushottam Tiwari (Dead) by L.Rs. - 2001 (2) Mah.L.J. 786 and in particular, three lines appearing in the middle in paragraph 15 by highlighting them - "Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or a camouflage, adopted by the appellate Court for shirking the duty cast on it." In the next line itself, the Apex Court has observed - "While writing a judgment of reversal, the Appellate Court must remain conscious of two principles. 4 Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge, who authors the judgment. Extracting few lines from the judgment referred above by itself will not translate to hold that the first appellate court totally shirked in its role assigned, to address the controversies. 6) The another limb of submission from Mr. Bajaj for the appellants is, there is a Judgment of the Full Bench dated 6th March, 2000 in the matter of Sombharti Guru Damu Bharti Vs. The State of Maharashtra and Ors. delivered in Writ Petition No.804 of 1991 decided on 6.3.2000, wherein this Court (Full Bench) has held that, under Section 2-A of the Hyderabad Abolition of Inams and Cash Grants Act, 1954, the Maharashtra Government has no authority to delegate the powers to Additional Commissioner to hear the appeals by a notification. The Full Bench held, if the change is to be made it should be done in the Act itself and not by issuing a notification. In the present case, the exercise carried by the plaintiff before the learned Commissioner was way back in 1992. The Judgment of the Additional Commissioner was dated 18.12.1985. Thereafter the 5 plaintiff herein has challenged all these judgments in Writ Petition No.1670/1992 on 3rd March, 1992. However, the plaintiff withdrew the writ petition unconditionally on 9th June, 1993. This later part of position of law, having been not reflected, though it was to the knowledge of the plaintiff in the writ petition at the appropriate places, need not be allowed to be coined to hold that the powers, being exercised by the Additional Commissioner to divulge the contentions of the plaintiff, it should have been taken into considered by the first appellate court. It cannot be said that the first Appellate court erred in not exercising its powers and also did not consider the principles of res judicata operating in the matter as the Judgment, according to the learned Counsel, is a nullity. 7) Section 51 of the Bombay Village Panchayats Act warrants a notification for allotment of the Government property to the Gram Panchayat. However, if this exercise is not done, that by itself will not allow a license to the plaintiff to agitate against the Gram Panchayat. 8) Before dealing with the point for remand, few facts, material to deal with the 6 controversy, also need to be addressed. The plaintiff sought that the suit land is an Inam land. This is against the persistent entries in Government record, showing the Government as owner of the property. Record also demonstrate, the Governmental authorities remained in slumber to address or to oppose the contentions raised by the plaintiff (appellant). However, it was only after the Grampanchayat, which has figured in the matter. The case has taken the turns to its logical end. 9) There is a judgment of Deputy Collector, Land Reforms, Aurangabad dated 26.7.1989 in case No.80/LR/TEN/A/2 in between Amiruddin and Ors. Vs. Sarpanch, Grampanchayat, Aasegaon, Tq. Gangapur. The State Government was a party. The said judgment was pronounced against the plaintiff. The plaintiff, by prayer clause B in the plaint, calls the said judgment to be a nullity, non-est and not binding on the plaintiff. The plaintiff also seeks quashing the judgment and orders passed by the Additional Commissioner, Aurangabad, dated 31.12.1990 in case bearing No. 1990/WTN/A/2 between Tajuddin s/o late Amiruddin Vs. State of Maharashtra, the Sarpanch, Grampanchayat, Asegaon, Tq. Gangapur. This was a challenge to the earlier referred judgment of Deputy Collector dated 26.7.1989. The 7 matter was taken by the plaintiff before the learned Minister in an appeal. The learned Minister of Revenue and Forest Department, Government of Maharashtra, Mantralaya, Mumbai, by its communication dated 19th October, 1991, rejected the application of Tajuddin s/o Amiruddin Vs. Commissioner, Aurangabad and the Sarpanch, Asegaon. According to the plaintiff, the decision/judgment of the learned Minister is wrong, erroneous and amounting to failure to exercise jurisdiction and it adversely affects the rights of the plaintiff and, therefore, unjust. 10) The plaintiff asserts that the land Survey No.2, admeasuring 23 acres and 13 gunthas has been recorded as a Service Inam land, dedicated for services to the Dargah of Hazrat Pir Manik Shah Pir Bhandari by the Atiyat authorities under the Hyderabad Atiyat Inquiry Act, 1952 and the succession is sanctioned, approved in the name of the plaintiff in the year 1988 and consequently the plaintiff asserts that the other judgments of the revenue authorities referred herein before should be declared as null and void. 11) As against this, a glaring admissions recorded by the plaintiff appearing in paragraph 8 12 of the evidence need to be considered. The plaintiff accepts that the Wakf Board has not issued any certificate in his name as a `Mutawali’ of the suit land and, therefore, there is no document in possession of the plaintiff to establish his status as a Mutawali. Exhibit-77 has been issued by the Deputy Collector, Aurangabad in the name of Amiruddin in respect of the field survey No.78 and the name of the plaintiff or branch of the plaintiff is not published in the Government Gazette published by the Wakf Board in the column of Mutawalli in respect of the suit land. The situation of showing the Multakhab, Exhibit-75 to be a basic document, also blast contention of the plaintiff. Multakhab, Exhibit-75 firstly is devoid of any survey number; secondly, it specifies the area as 23 acres and 39 gunthas as against the area of suit land to be 23 acres and 13 gunthas; thirdly, there was a correction effected in the Munltakhab, specifying the area of the land as 30 acres 3 gunthas with indication restored with condition of service. If these changes are seen, they remotely match to the land survey No.2 to infer that the reference in the Multakhab certificate affixed to the suit land. That apart, the revenue assessment of the land shown in the Multakhab is also not matching to the existing possession reflected in the revenue 9 record. 12) Having seen this position, let us revert back to the contention of the first Appellate Court missing the track. The first Appellate Court formulated three points, as under : "Points Findings 1) Whether the appellants prove that they are having any legal rights over the suit land Survey No.2, admeasuring 23 acres, 13 Gunthas, situated at Fatiyabad Tq. Gangapur and that the land is `Service Inam land' ? In the negative 2) Whether the appellants prove that they are in possession of the suit land ? In the negative 3) Whether the appellants are entitled to the reliefs as prayed for ? In the negative 13) The individual skill of human being and authority need not be questioned. The Point No.1, referred above, in condensed form significantly demonstrate as to what was running in the mind of the learned first Appellate court, as he refers that whether the appellants prove that it is a `Service Inam land'. This naturally will not its 10 continuation and a reference to the several judgments to which the plaintiff sought to be quashed. It cannot be said that the learned first Appellate Court should have crystallized each and every judgment in the Points to be formulated and then should have answered. 14) It is not that the first Appellate Court has not gone through the evidence or to the documents. He has in the given set of facts, in legal frame, analyzed the evidence vis-a-vis the documents and negatived the same. It cannot be said that the observation of the first Appellate court are of a general or sweeping nature, creating a situation of camouflage or that it does not reflect what was running in the mind of the learned Judge. 15) The learned Counsel for the appellants submits that the reported Judgments produced before the learned Judge are not deaalt with in tune it was expected of. I find, the learned first Appellate Court indeed has referred to the judgments, however, not discussed the same elaborately. Since the facts in the respective judgments, to which the plaintiff sought reliance, did not match to the facts and as there was a overwhelming record purported against the plaintiff through the revenue authorities, the 11 learned Judge justifiably did not feel essential to refer the judgment with all precision. This will certainly not amount to miscarriage of justice or the plaintiff taken aback. 16) Taking survey of all the facts, I do not see that the Second Appeal projects any question to be formulated as a substantial question of law between the parties. The request to remand the matter to the first Appellate court will not be in terms of Order 43 Rule 1(u) of the Civil Procedure Code. The Second Appeal is sans merit, consequently is dismissed. CA dismissed. (K.U.CHANDIWAL) JUDGE bdv/sa1732.04