1 (SA60.07) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.60 OF 2007 Shri Namdeo Bhau Chavan ) Age: 76, Occ: Agriculturist ) R/at: Sidhewadi, Tal. Miraj, ) Dist: Sangli ) .... Appellant. V/s 1 Smt. Shantabai Kundlika Chavan ) Age: 55, Agriculturist ) Occ:Household ) ) 2 Shri Mahadeo Vishnu Chavan ) Age : 45, Occ: Agriculturist ) ) 3 Shri Sahadeo Vishnu Chavan ) Age : 45, Occ: Service ) ) 4 Yahdeo Vishnu Chavan ) Age: 42, Occ: Service, All R/o. ) Sidhewadi, Tal: Miraj. ) Dist : Sangli. ) .... Respondents. Ms. A.R.S. Baxi for the appellant. Mr. S.K. Chinchlikar for Respondent No.1. CORAM: V. M. KANADE, J. DATE : 29TH APRIL, 2011 ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the appellant and the learned Counsel appearing on behalf of 2 (SA60.07) Respondent No.1. 2. Following two substantial questions of law were framed at the time of admission of the appeal:- “1 Whether the decree passed by courts below is sustainable u/s 36A of Prevention of Fragmentation Act, 1947?” “2 Whether the courts below were correct in issuing injunction against Appellant who is co-owner of Gat No. 347?” 3. Appellant herein is the original Defendant and Respondent No.1 is the original Plaintiff. For the sake of convenience, parties shall be referred to as “Plaintiff” and “Defendant”. 4. Plaintiff filed a suit in the Civil Court for an order of 3 (SA60.07) injunction restraining the Defendant from interfering with her possession. Trial Court decreed the suit and injunction was also granted in favour of the Plaintiff, restraining the Defendant from interfering with her possession. Against this judgment and decree, Defendant preferred an appeal before the lower appellate court. The order passed by the trial court was not stayed during pendency of appeal. Appeal was finally dismissed. 5. The learned Counsel appearing on behalf of the appellant has strenuously urged that the appellant had purchased half portion of Gat No.347 and, therefore, he was the owner to the extent of half portion of the said land and that in the consolidation scheme an order was passed initially in favour of the appellant herein. It is submitted that orders passed by the Consolidation Officer in the scheme cannot be interfered with in a suit and the effect of granting order of injunction amounted to interference with the order passed by the Consolidation Officer. Secondly, it is submitted that since the Defendant, appellant herein was co- owner of the said property, no order of injunction could be 4 (SA60.07) passed in favour of the Plaintiff. The learned Counsel has invited my attention to the provisions of section 36A and also the judgment and order of the trial court and the lower appellate court. It is submitted that both the courts below have lost sight of the fact that by virtue of Sale Deed, appellant was owner to the extent of 50% and he was also in possession of the suit property. It is further submitted that, initially, suit was filed by the Defendant and the said suit was dismissed by the Trial Court and against the said judgment and order Defendant preferred an appeal. However, the said appeal was allowed to be withdrawn with liberty to file fresh suit. It is submitted that no fresh suit was filed. However, in view of the withdrawal of the appeal, the finding recorded by the trial court also stood withdrawn. It is submitted that, both, the trial court and the lower appellate court had erred in holding that the said finding recorded by the trial court had attained finality. 6 On the other hand, the learned Counsel appearing on behalf of Plaintiff submitted that provisions of section 36A would not create a bar for filing a suit where reliefs are not 5 (SA60.07) in the nature of challenge to the order passed in the consolidation proceedings. In support of the said submission, he relied upon the judgment of the learned Single Judge of this Court in Prabhakar Kushaba Hagwane and others vs. Yashwant Bhau Hagwane since deceased by Lrs. Ganpat Yashwant Hagwane1. He further submitted that, therefore, the suit for injunction simpliciter filed against the Defendant was maintainable and both the courts below, therefore, had accordingly held that the suit was maintainable. So far as the second submission of the learned counsel appearing on behalf of the Defendant/Appellant herein is concerned, he submitted that the specific case of the Plaintiff was that she was owner of the specific portion of the land and, therefore, there was no question of the Defendant being co-owner of the said land. 7. I have given my anxious consideration to the submissions made by the learned Counsel appearing on behalf of the Plaintiff and Defendant. 1 1993 Mh.L.J. 1291 6 (SA60.07) 8. Before considering the rival submissions, it will be relevant to consider the provisions of section 36A of the said Act which reads as under:- “36A (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.” 9. A plain reading of the aforesaid provision clearly reveals that Civil Court is precluded from deciding any 7 (SA60.07) question which is required to be decided by the State Government or any officer or authority. As a natural corollary, the jurisdiction of the Civil Court is ousted expressly in respect of the matters which are decided by the State Government or any Officer or authority under this Act. A preamble to this Act reads as under:- “An Act to provide for the prevention of fragmentation of agricultural holdings and for their consolidation. WHEREAS it is expedient to prevent the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof; It is hereby enacted as follows:-” The purpose behind introducing this Act was, therefore, to prevent the fragmentation and for consolidation of 8 (SA60.07) agricultural holding. The Act lays down the procedure for consolidation and also the powers of consolidation officer have been enumerated in the Act. The Act also lays down the effect of consolidation proceedings and consolidation holdings. Therefore, any order passed by the State Government or any Officer in respect of consolidation of holdings or redistribution of holdings cannot be challenged before the Civil Court or Mamlatdar’s Court. It is a settled position in law that jurisdiction of civil court is either expressly or impliedly excluded if the provision is so made in the special Act to that effect and not otherwise. 10. In the present case, section 36A excludes the jurisdiction of the civil court only to the extent of decisions which are taken by the State Government or Officers appointed by it for implementing the provisions of this Act. Therefore, the suit for simpliciter injunction restraining the Defendant from obstructing possession is not specifically barred by the said provisions of section 36A. In my view, ratio of the judgment in Prabhakar Kushaba Hagwane and others vs. Yashwant Bhau Hagwane since deceased by Lrs. 9 (SA60.07) Ganpat Yashwant Hagwane1 would squarely apply to the facts of the present case. The learned Single Judge of this Court in the said judgment has observed in para 7 as under:- “7. Had Civil Court jurisdiction to try this suit in view of Section 36A is the second question of law, raised before me. Section 36A mentions that no Civil Court or Mamlatdar’s Court has 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. Sub-section (2) of that section mentions that no order of the State Government or any such officer or authority made under the Act shall be questioned in any Civil, Criminal or Mamlatdar’s Court. Now, the Plaintiff had filed this suit on the basis that he has 1 1993 Mh.L.J. 1291 10 (SA60.07) been illegally dispossessed of the property subsequent to his acquisition of the title under the Act. The Defendants have disputed this fact. Quite clearly the dispute of this nature would fall within the jurisdiction of the ordinary civil Court. No provision of the Act is brought to my notice under which it could be said that the controversy, like this, is required to be settled, decided or dealt with under the Act either by the State Government or any officer or authority. Under the circumstances, the submission that the Civil Court had no jurisdiction to try the suit, is without any merit.” 11. The other submissions made by the learned Counsel appearing on behalf of the appellant are on factual findings which are arrived at by the lower Courts and this Court while exercising its jurisdiction under section 100 of the Civil 11 (SA60.07) Procedure Code cannot interfere with the said findings. Further, the contention of the learned counsel appearing on behalf of the appellant/original Defendant that the order was passed by the Consolidation Officer in favour of the appellant also cannot be accepted since it is rightly pointed out by the learned Counsel appearing on behalf of Respondent No.1/Plaintiff that the said order was set aside and the Writ Petition No.4924/1993 filed by the appellant herein was also dismissed by this Court by judgment dated 21/03/2011. Hence, there is no merit in the submissions made by the learned Counsel appearing on behalf of the appellant. 12. In my view, therefore, the suit which was filed by the Plaintiff in the Civil Court for injunction was maintainable. The first question of law framed by this Court, therefore, is answered in the affirmative. So far as the second question of law is concerned, both the Courts below have come to the conclusion that the Plaintiff claimed to be the owner of a specific portion in Gat No.347 and since there are concurrent findings of both the Courts below there is no question of 12 (SA60.07) Defendant being declared to be the co-owner in respect of the property. The second question therefore is answered in the affirmative. 13 Second Appeal is accordingly dismissed. (V.M. KANADE, J.) 13 (SA60.07)