WP. 4924-93 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 4924 OF 1993 Shri. Namdeo Bhau Chavan, ) Age 76, Occu.- Agriculturist ) Rresiding at Sidhewadi, Tal. Miraj, ) District Sangli ... Petitioner Vs. Smt. Shantabai Kundlika Chavan ) Age : 55, Agriculturist, ) Occu.- Household ... Respondent *** Mrs. A. R. S. Baxi, for the Petitioners. Mr. S. K. Chinchlikar, for Respondent. *** CORAM: V. M. KANADE J. DATE : MARCH 21, 2011 ORAL JUDGMENT : 1. Heard the learned counsel appearing on behalf of the petitioner and the respondent. By this petition, which is filed under Art. 227 of the Constitution of India, the petitioner is challenging the order passed by the Dy. Director of Land Records, Pune in Consolidation WP. 4924-93 - 2 - Appeal No. 23 of 1988, dated 18th May, 1992. By the said order, the Dy. Director of Land Records, Pune was pleased to set aside the judgment and order of the lower Authority Special Superintendent of Land Records dated 29-10-1988 and was pleased to allow appeal filed by the petitioner herein and delete name of respondent herein to the extent of 0.31R in Gat No. 928. 2. Brief facts are as under - . According to the petitioner, he purchased half share in Gat No. 928 and one-fourth share in Gat No. 926 on 12-6-1970. In 1978 the petitioner filed a Regular Civil Suit No. 247 of 1978 for a permanent injunction against the respondent, restraining him from disturbing his possession in respect of the said share in two Gat numbers. After the suit was filed on 14-11-1980, the respondent was shown as owner of Gat No. 928 vide Mutation Entry No. 1119. On 31-8-1984 the Regular Civil Suit filed by the petitioner was dismissed. He, therefore, filed an Appeal in the District Court vide Regular Civil Appeal No. 409 of 1984. 3. Thereafter the petitioner filed a complaint on 4-8-1986 before the Dy. Director of Land Records for deleting the name of the respondent from Gat No. 928. On 23-4-1987 report was given by the Consolidation Officer in which he stated that the petitioner is in joint WP. 4924-93 - 3 - possession along with respondent. On 1-12-1987 the Consolidation Scheme came into force. Thereafter, petitioner filed an Application under Order 23, Rule 1 of the Code of Civil Procedure for withdrawal of the Appeal with liberty to file a fresh suit on the same cause of action. It is an admitted position that fresh suit has not been filed by the petitioner after withdrawal of the Appeal and the Suit on 20-9-1988. 4. On 29-10-1988 the complaint filed by the petitioner before the Superintendent of Land Records & Consolidation was allowed and name of respondent was deleted from Gat No. 928. The respondent preferred an appeal before the Dy. Director of Land Records. The said appeal filed by the respondent was allowed on 18-5-1992 and the order passed by the Special Superintendent of Land Records was set aside and confirmed the consolidation scheme of Gat No. 928 (new Gat No.347) and the entries which were made pursuant to the said Consolidation Scheme vide Mutation Entry Nos. 1119, 1120 and 26. Being aggrieved by the said order, the petitioner has filed this writ petition. 5. It is submitted that the Dy. Director of Land Records has not taken into consideration the factual aspect of the case. It is submitted that it is an admitted position that the petitioner had purchased the half share in Gat No. 298 and Gat No. 926 by the registered sale-deed and this fact WP. 4924-93 - 4 - has not been denied by the respondent. It is further submitted that name of the petitioner was shown in the revenue record to the extent of half share. He was shown in possession of the lands. It is submitted that Dy. Director of Land Records had committed an error of law, which is apparent on the face of record by ignoring this fact and had come to the conclusion that petitioner was not in possession of the said land. It was further submitted that the Lower Authority had further erred in relying on the judgment of the Civil Court in the suit, filed by the petitioner. It is submitted that the suit was filed for simplicitor injunction and the observations made by the Civil Court in the said suit were not binding on the lower authorities. It is submitted that, therefore, the order which was passed by the Lower Authority, after relying on the order of the Civil Court was liable to be set aside. It is submitted that this is a fit case where the matter should be remanded back for further inquiry. 6. The learned counsel for the petitioner has invited my attention to the judgment and order passed in the civil suit. It is submitted that it is a settled position in law that in view of Section 36A and 36B of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, the Civil Courts do not have jurisdiction to decide any suit or aspect which had to be decided by the Consolidation WP. 4924-93 - 5 - Officer. It is submitted that on account of the said provision, the petitioner had withdrawn the suit and the appeal. 7. In my view, the submissions made by the learned counsel for the petitioner cannot be accepted. So far as question of jurisdiction of the Civil Court is concerned, Section 36A and 36B of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 clearly lays down that the Civil Courts do not have jurisdiction to decide any issue relating to the Consolidation Scheme. It would be relevant to take into consideration the said provisions, 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. 36B. (1) If any suit instituted in any Civil Court or Mamlatdar’s Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the ‘competent authority’) the Civil Court or Mamlatdar’s Court shall stay the suit and refer such issues to such competent authority for determination. (2) On receipt of such reference from the Civil Court WP. 4924-93 - 6 - or Mamlatdar’s Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court or Mamlatdar’s Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.” 8. Perusal of the said provision clearly indicates that the bar which is imposed on the Civil Court is only to the extent of matters pertaining to the decisions which are to be taken by the Consolidation Officer appointed under the Act. It is a well settled position in law that in respect of declarations which are to be given, as provided by Section 34 of the Specific Relief Act, only the Civil Court has a right to give declarations. Similarly a suit for perpetual injunction can be filed only in the Civil Court, seeking injunction by establishing that plaintiff is in possession of the land/premises. The Consolidation Officers do not have power of making declaration or passing an order of injunction. It is an admitted position that in the suit which was filed by the petitioner, the Civil Court held that the petitioner was not in possession of the suit property and therefore answered issue No.1 against the petitioner. The Plaintiff had filed suit for perpetual injunction in respect of the suit property. The Civil Court in its judgment & order dated 31-8-1984 has observed as under- WP. 4924-93 - 7 - “On the day of suit, the suit land was bearing Gat No. 928. It is clear from the evidence on record that the plaintiff was not in possession of Gat No. 928. It is not explained why the plaintiff has not produced 7 x 12 extract bearing Gat No. of the suit property at the time of the suit. Plaintiff has not challenged the extracts of consolidation scheme. Plaintiff has produced 7 x 12 extract of the Gat No. 928 at Ex.53 bearing date 23-8-1979 and the extract of mutation entry, which is at Exh. 54 dated 9-10-1979. It appears from Exh.54 that the mortgagee in possession of the land bearing Gat No. 928 by name Nandkumar Akaram Chavan, represented by minor guardian Akaram Ramchandra Chavan, filed an application to the village Officer that the plaintiff has ½ share in Gat No. 928 his name be entered to Gat No. 928 to the extent of ½ share. No notices are issued to the original owner of Gat No. 928 and the said mutation entry is certified on 28-7-1979. As per the said mutation entry plaintiff’s name is entered to Gat No. 928 to the extent of ½ share and the 7 /12 extract is at Exh.53. Hence, it is clear that the plaintiff has made an attempt after the institution of the suit to enter his name to the record of rights of the suit property. It is apparently clear from the face of the mutation entry at Exh. 54 that the said mutation entry is caused by illegal and irregular method, ......... Hence, I find that initially plaintiff has not come in the Court of Law with clean hands. But has deliberately kept hidden the evidence which would have gone against him and WP. 4924-93 - 8 - subsequently after the institution of the suit has managed to create the evidence to show his title to the suit property and this conduct of the plaintiff will not deserve him to get any equitable relief under the Law of Injunction. ..... Hence, I find that the plaintiff has failed to prove his exclusive Wahiwat and possession in respect of the suit property.” 9. So far as issue No.2 is concerned, Civil Court has recorded the finding that the defendant is in lawful possession of the suit property Gat No. 928 and therefore, held that plaintiff is not entitled to the relief of injunction. The finding given by the Civil Court, therefore, was binding on the Dy. Director of Land Records and therefore, the lower Authority has correctly appreciated the facts on record and has held that the plaintiff was not in possession and therefore, confirmed the consolidation scheme and Mutation Entry Nos. 1119, 1120 and 26. It is pertinent to note that though liberty was granted by the Appellate Court to the petitioner to file a fresh suit, he has chosen not to file any fresh suit for declaration of ownership in respect of the said Gat No. 928 to the extent of his half share. No case is, therefore, made out for interference with the impugned judgment and order passed by the lower Authority. Consequently, writ petition is dismissed. [ V. M. KANADE J.]