* 1 * FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 1079 OF 2005 [Shri.Kamalakar Bapurao Lokhande V/S. Shri.Vijay Pandarinath Mahapure & anr.] _____________________________________________________________________________________ Office Notes, Office Memoranda of : Coram, appearances, Court s orders : ’ or directions and Registrar s’ : Court s or Judge s orders ’ ’ orders : _____________________________________________________________________________________ Mr. A.P. Kulkarni, adv.for appellant. Mr. V.S. Gokhale, adv.for respondent no.1. CORAM : SMT. R.P. SONDURBALDOTA, J. DATED : 3RD DECEMBER, 2009. PC :- 1. Both the advocates state that the appeal can be disposed off finally at the stage of admission. Mr.Kulkarni, the learned counsel for the appellant points out that the trial court in its order dated 24th October, 1997, while dismissing the Suit, has held But as “ per Section 36(A) of Bombay Prevention of Fragmentation and Consolidation of Holdings * 2 * Act, 1947 clearly shows that Civil Court or Mamlatdar s Court have no 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 any Authority.” Mr.Kulkarni, the learned counsel for the appellant points out that in view of this bar, the court ought to have dismissed the suit on this ground alone, instead of considering it on merits and dismissing it on merits as well. The appellant had preferred an Appeal against the order of the trial court which appeal was dismissed by the impugned order dated 12th January, 2005. Mr.Kulkarni, submits in view of the realisation that the suit filed by the appellant is not maintainable, he desires to withdraw the same so that he can file appropriate proceedings. He requests that the Second Appeal be allowed and the orders passed by the courts below be set aside only * 3 * to enable him to withdraw the suit. Mr. Gokhale, the learned counsel for the respondents concedes to the position in law as regards Section 36(A) of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. 2. In the above circumstances, the Second Appeal is allowed. The impugned order dated 12th January, 2005 is set aside. Civil Appeal No.177 of 1997 is allowed. The order of the trial court dated 24th October, 1997 dismissing Regular Civil Suit No.299 of 1988 is set aside. The appellant is permitted to withdraw the Suit. The Suit is disposed off as withdrawn. The appellant is at liberty to file such proceedings as permissible in law. (Judge)