Sidagonda Avagonda Sardar Patil ... vs Bhimgonda Kadgonda Kushappa ...
2002 Latest Caselaw 103 Bom

ORDER

R.J. Kochar, J.

1. The appellants in the above appeal are the original defendants. They are aggrieved by the impugned judgment and order passed by the District Court, Kolhapur on 25-3-1985 in Civil Appeal No. 209 of 1982 allowing the plaintiffs' appeal with costs throughout and ordering the original defendants-Appellants to hand over possession of the suit land to the plaintiff with mesne profits in accordance with Order 20, Rule 12(1)(c) of the Civil Procedure Code. The learned Lower Appellate Court had also observed that the Plaintiff could apply to the Collector or the Competent authorities under the Bombay Prevention of Fragmentation and Consolidation of Holding Act, 1947 and seek permission for the division of the suit land from the Consolidation Block No. 1234. The learned Judge also dismissed the cross objections filed by the respondents-present appellants.

2. For the sake of convenience the parties will be referred to as the Plaintiff and the defendants as described in the original suit before the Trial Court.

3. This Court had admitted the present second appeal on 2-5-1985 by the following order:

"Admit.

The substantial question of law is at ground No. 13."

The Ground No. 13 reads as under :

"13. Provisions of Section 31-AA are wrongly construed by Appellate Court. It is not a perpetual right, but limited by time prescribed under the said section."

4. Shri G.R. Rege, the learned Counsel for the Appellants has formulated the substantial question of law at the time of final hearing of this appeal as under:

"Under Section 31(1)B it is necessary to have a previous sanction of the Collector for sub-dividing the Gat No. and therefore the Lower Appellate Court was not right in law in passing the decree in the absence of such previous sanction."

5. I have heard both the learned Advocates for their parties at length. They have taken me through the entire proceedings and they have also cited the number of authorities in support of their respective contentions.

6. The original plaintiff had filed the regular civil suit for possession of the suit property from the defendants. The plaintiff claimed ownership of the suit property bearing RS. No. 241/1-B admeasuring 18 Gunthas. The plaintiff has claimed to an agriculturist by occupation and averred that he was in possession of the suit land and other properties of one Avubai w/o Yalagonda Sardar as tenant for many years prior to the purchase of the aforesaid suit land by the plaintiff from the said Avubai under a Sale Deed executed by her on 6-9-1961. The said Sale Deed was registered on 6-9-1961 and the plaintiff has claimed the title to the said suit property on the basis of the said Registered Sale Deed. According to him, he was in Vahivat of the suit property as the owner and his name was also entered in record of rights as owner. It was the case of the plaintiff that the defendants had obstructed his Vahivat in the suit property in the year 1965 and therefore, he had filed a Civil Suit bearing No. RCS 36 of 1975 claiming that he was in possession of the suit land and that the defendants should be injuncted from disturbing his possession. Since the plaintiff did not get injunction against the defendants he thought it proper to withdraw the said suit. He however subsequently filed another suit bearing Regular Civil Suit No. 18 of 1978 for possession of the suit land from the defendants. According to the plaintiff, the suit land No. 241/1-B was in the ownership of the predecessor in title of the plaintiff viz. Avubai. He further alleged that at the time of consolidation the suit property was wrongly consolidated in Block No. 1234. The plaintiff therefore had prayed that the said block should be broken and the suit property No. 241/1B should be handed over to him.

7. The defendants filed their written statement and contested the suit on various grounds including the ground of description of the suit property. The defendants challenged the title of the plaintiff and also the title of his predecessor Avubai. They further pleaded that the defendant No. 1 was the owner of the suit land and under the consolidation scheme in Sulkud in the year 1954. The Survey No. 241/1 was consolidated in block number in the name of defendant No. 1 as its owner. The defendants have claimed the ownership of the entire block after consolidation in block No. 1234 as they are exclusive property and they did not admit the claim of the plaintiff that he was the owner of the suit property bearing No. 241/1B. The defendants prayed for dismissal of the suit with costs.

8. The learned Trial Court framed five issues on basis of the pleadings of the parties. The Trial Court answered the issues on the basis of the pleadings and the evidence on record by his Judgment and Order dated 30-4-1982. The trial Court has held that the suit property was properly described in the plaint. The Trial Court further held affirmatively that the plaintiff had proved that Avubai Sardar Patil had title to the suit land to pass the same to the plaintiff. The Trial Court had also held that the plaintiffs suit was not barred by limitation and was in time. While recording the findings on the aforesaid three issues the learned Judge has given reasons in great details. The issue No. 2 in respect of title the learned Judge has considered the entire past history and the averments and the evidence of the parties in respect of title of Avubai. It was held by the trial Court after great deliberation that Avubai had good title over the suit land at the time when she had sold it to the plaintiff. On the question of limitation also the Trial Court has recorded reasons to hold that the suit filed by the plaintiff was in the limitation. As far as the main issue in respect of the entitlement of the plaintiff to get the possession of the suit land after breaking the block No. 1234 allotted to the defendants without the permission of the Collector, the trial Court has expressed a lurking doubt whether the Civil Court could break a consolidated block by peeping into a title to the part of the property consolidated in the block number by consolidation officer. According to the trial Court, the Civil Court might decide a title of a complete block number and hand it over its possession to the rightful owner. The learned Judge further observed that consolidation of the property in block No. 1234 was not under challenge as void. The learned Judge has also observed that the plaintiff was not claiming the ownership of the entire block No. 1234. After making aforesaid observations in paragraph 9 of the order the trial Court has observed that the plaintiff might seek the remedy of breaking the block by referring it to the consolidation officer of his title to the suit property and get its possession from the authority by breaking the block or its price whatever it might be under the Act. Finally the trial Court was of the opinion that the plaintiffs suit was not maintainable and he was not entitled for possession of the suit property separately through the Civil Court. In the aforesaid circumstances the suit was dismissed with costs.

9. Being aggrieved by the aforesaid judgment and order of the trial Court the plaintiff preferred the appeal before the court of the District Court at Kolhapur. The learned lower Appellate Court heard the learned advocates for the parties and recorded his points for determination in the appeal in respect of the title of Avubai and also the point whether the plaintiff was entitled to the possession of the suit land after breaking Gat No. 1234 which was allotted to the defendants. The lower Appellate Court held both the points in favour of the plaintiff and gave cogent reasons for the same. The learned Judge further did not agree with the observations of the trial Court in respect of the permission of the Collector for breaking Gat No. 1234. He held that such permission was not necessary but by way of abundant precaution he also observed that if it was necessary the plaintiff might apply to the Collector for the same. On the other two points in respect of the limitation and the entitlement of the plaintiff to mesne profits the Lower Appellate Court answered the points in favour of the plaintiff. He finally allowed the appeal and dismissed the cross objections by impugned judgment and order dated 25-3-1985.

10. Shri G.R. Rege, the learned counsel for the appellants - the original defendants has fairly and rightly not entered into the realm of finding of facts recorded by both the learned Judges concurrently. Shri Rege has however, addressed me on the substantial question of law which he formulated and to which he fairly confined. According to the learned counsel, the judgment of the lower Appellate Court was contrary to the provisions of law viz. Section 31(1)B. Shri Rege has enumerated his submissions and has canvassed that Civil Court could not and did not have jurisdiction to order break-up of the consolidated block as was done by the lower Appellate Court. According to the learned counsel the jurisdiction of the Civil Court is totally barred to consider and order break-up or sub-division of the consolidated block. Shri Rege pointed out that it was for the Collector under Section 31(1)B to consider the question to break the block. It was for the Collector to sanction or not to sanction the breaking-up of the consolidated block. According to Shri Rege, the plaintiff ought to have first approached the Collector and ought to have prayed for previous sanction for breaking-up of the suit land No. 241/1B from the consolidated block No. 1234 on the basis of the ownership claimed by the plaintiff over the said suit land. On such previous sanction granted by the Collector the consolidated block could be broken-up and after getting such previous sanction the plaintiff could have approached the Civil Court for appropriate decree. The grievance of Shri Rege is that without obtaining previous sanction of the Collector under the said section 31(1)B the Civil Court had no jurisdiction to order break-up of the block number. Shri Rege has further emphasised on Section 8 which totally prohibits any fragmentation by way of transfer for partition of any land in the total area. Section 8AA prescribes a particular procedure to be followed in a case where partition is made by the Court or the Collector. According to Shri Rege, the decree passed by the Appellate Court was only a contingent decree and Civil Court cannot pass such contingent decree. He has pointed out that Lower Appellate Court has observed that the plaintiff could apply and seek sanction of the Collector for breaking-up of the block if necessary, though according to the learned judge it was not necessary. Shri Rege laid much emphasis on the mandate of the legislature in Section 31(1)B that before breaking-up of the block previous sanction of the Collector is essential and the same is a condition precedent. In the absence of which the breaking-up of the consolidated block was illegal. The learned Counsel further submitted that previous sanction contemplated by the law cannot be equated with ex-post-facto sanction or permission. According to the learned Counsel, therefore the impugned order of the lower Appellate Court was totally illegal and was contrary to the clear legal position.

11. Shri Rege, the learned counsel for the appellants has shifted, his emphasis which he gave at the time of admission of this appeal from Section 31AA to Section 31(1)B at the time of final hearing. According to the learned counsel, under Section 100(5) proviso of the Civil Procedure Code the appeal can be heard on any of the substantial question of law if the court is satisfied that the case involves such question. In my opinion the substantial question of law which Shri Rege has formulated as set out hereinabove requires to be considered.

12. According to Shri Pandit, the learned advocate for the respondent -original plaintiff, who is represented by his legal heirs who are brought on record in this appeal, has submitted that as far as the facts are concerned they are not challenged and there cannot be any challenge in the second appeal and both the Courts below have recorded concurrent findings. On the question of law according to Shri Pandit the learned lower Appellate Court had taken a correct view though the Trial Court did not decide the point exactly against the plaintiffs but had only expressed his doubt and on the basis of doubt the Trial Court had dismissed the suit. He had left to the plaintiff to seek appropriate remedy of breaking the block by approaching the Consolidation Officer and to get possession of the suit property or price thereof. Shri Pandit has pointed out that the learned Judge of the Trial Court was not sure of the legal position and had therefore dismissed the suit advising the plaintiff to seek proper remedy for the relief which he sought from the Civil Court, Shri Pandit has submitted that the learned lower Appellate Court has removed the said lurking doubt of the Trial Court and has given cogent reasons to hold positively in favour of the plaintiff that the plaintiff had purchased the property under the Sale Deed dated 16-9-1961 and when the plaintiffs property was situated towards the east side of the suit land the plaintiff was certainly entitled to get possession of the suit land and for that purpose even permission of the Collector was not necessary. The learned Judge further proceeded by way of abundant precaution that in case such permission was necessary under the Act such permission could be obtained before the execution of a decree. According to Shri Pandit, the learned Judge was right in holding that plaintiff could take help of Section 31AA of the Act and ask for permission of the Collector. According to Shri Pandit, in view of Section 31(3)(ii)(iii), Section 31(1) is not attracted and the plaintiff was not required to seek previous sanction of the Collector to seek breaking-up of the suit land from the consolidated block. Shri Pandit has further pointed out that the dead line prescribed under Section 31AA was 15-11-1965 and his client was in the possession of the suit land under the Sale Deed dated 16-9-1961. The transfer, partition or sub-division of any land which had taken place prior to the dead line was held not to be void merely on ground of the contravention of any of the provisions of the Act. Shri Pandit has further pointed out that the plaintiffs own block of the land was on the eastern side of the suit land which was a contiguous holding and therefore, in fact the breaking-up of the block No. 1234 by the suit land No. 214/1B will not create any separate fragment contemplated by the Act. The plaintiffs suit land No. 241/1B shall become part and parcel of the block which is block No. 1237. Shri Pandit has further relied on a number of authorities. The ratio of the said authorities is that the Civil Court or any appropriate authority can always pass a decree or an order and sanction can always be obtained on such decree, or order. Shri Pandit has further submitted that a Civil Court can always pass a decree making it subject to the sanction or permission of the appropriate authority as contemplated by the law.

13. In reply to the submissions of Shri Pandit, Shri Rege has pointed out that there was no pleading to attract Section 31(3) of the Act. According to Shri Rege, the said provisions would apply only when the owner of the adjoining holding cultivates his lands personally or is an agriculturist or agricultural labour in its entirety. According to Shri Rege, there is no pleading and evidence adduced by the plaintiff to show that he was cultivating his land personally and in its entirety. According to Shri Rege, the agriculturist has himself to cultivate the land and that too, on the whole time basis and not as a part time occupation. Shri Pandit has pointed out from the plaint and the evidence that the plaintiff was the owner of the contiguous block No. 1237 and was always in possession of the said land and that he himself was cultivating the land. He has pointed out from the plaint the aforesaid portion in paragraphs 2 and 6 that the plaintiff was actually cultivating the land and unless is an actual agriculturist he could not purchase the land.

14. In my opinion Shri Rege is not right in his submission that there was no pleading to the effect that the plaintiff was not an agriculturist personally cultivating the land in its entirety. It is further significant to note that even in the title of the suit the plaintiff has described his occupation as agriculturist. He has even described the defendant as agriculturist by occupation. It is further clear from the record that the plaintiff was cultivating the land as the tenant of Avubai for a number of years and subsequently he had purchased the suit land 241/1B from the said Avubai under the registered Sale Deed. As he was in possession on or before 15-11-1965 it was permissible for him to approach the appropriate authority and get the suit land regularised on payment of certain penalty. It is further significant to note that the proviso to Section 31-AA grants further concession to the tenant in actual possession of the land transfer or of a person in actual possession of a contiguous holding the penalty payable in respect thereof is only one rupee. There is absolutely no doubt in my mind that the plaintiff was the owner of the adjoining holding Gat No. 1237 and that he himself was cultivating his land personally. He himself has given his occupation as agriculturist in the title of the suit throughout. He has also described the defendants as agriculturist by occupation. The totality of the facts had established that the plaintiff was and is an agriculturist in its entirety and he cultivates the land personally. There is not even a whisper on the part of the defendants to question the status of the plaintiff as agriculturist. If, the plaintiff were not to be found cultivating his land personally and in its entirety the defendants would not have missed to plead and prove the aforesaid fact and in that case the plaintiff would not have been able to seek protection of Section 31(3) of the Act. In my opinion therefore the previous sanction, of the Collector contemplated under Section 31(1) is not applicable to the suit land which is to be transferred to the plaintiff, who is the owner of the adjoining holded (Gat. No. 1237) and cultivates his land personally and in its entirety. In the aforesaid circumstances there is no question of seeking previous sanction of the Collector.

15. Assuming that the plaintiff is not protected by Section 31(3) of the Act, Section 31(1)(b) cannot be interpreted to say that the plaintiff had first to approach the Collector for sub-division or transfer or for possession of his suit land by breaking away from the block No. 1234. It would be convenient to reproduce Section 31(1) as below :

"31(1) Notwithstanding anything contained in any law for the time being in force, in holding allotted under this Act, nor any part thereof shall, save as otherwise provided in this section --

(a)     be transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, lease, or otherwise; or
 

(b)     be sub-divided, whether under a decree or order of a Civil Court or any other Competent Authority, or otherwise, so as to create a fragment, without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed."   
 

The section is crystal clear as far as the sub-division of the block is concerned. If the plaintiff had sought possession of the suit land on the basis of his title that he was the owner of the said piece of land under the registered Sale Deed and as his title was under challenge he had to approach the Civil Court to establish his title under the registered Sate Deed. The said dispute could not have been decided or adjudicated by the Collector. It was the Civil Court alone that had jurisdiction to adjudicate and adjudge the title of a party. The plaintiff had rightly approached the Civil Court with a plea that he was the owner of the suit land but he was deprived of the suit land by the defendants who have questioned his title under the Sale Deed and the defendants had also questioned the title of Avubai. All these disputed questions of facts in respect of the title of the plaintiff could not have been adjudicated and determined by the Collector. The plaintiff by approaching the Civil Court has rightly got established his title to the suit land. After getting a decree in respect of the title of the suit land he has to approach the Collector under Section 31(1)(b) for the purpose of actual physical sub-division from the existing block No. 1234 by breaking-up of the suit land No. 241/1B. Even after establishing his clear title he cannot straightway get the possession of the suit land as to get possession of the suit land would mean sub-division of the existing block No. 1234. In these peculiar circumstances he has to approach the Collector to get the physical sub-division of the Block No. 1234. It is significant to note that under Section 31 the block can be sub-divided under a decree or order of a Civil Court or any other Competent Authority which contemplates a decree prior to the actual physical breaking-up of the block. The moment the title is established by the plaintiff in this suit he will have to seek physical actual subdivision of the block by approaching the Collector. Such sub-division cannot be done without previous sanction of the Collector. The authority of the Collector begins after the decree of the Court and before the physical actual sub-division of the law. It has to act on the basis of the title established by the plaintiff. It therefore, cannot be said that the plaintiff had to first approach the Collector for seeking previous sanction for sub-division of the block and thereafter he had to approach the Civil Court to get possession of the suit land. Had he done so then perhaps it would have been argued that he had first to establish his title before the Civil Court and that Collector could not decide the rights or title of the parties. In my opinion the plaintiff had acted rightly and correctly by approaching the Civil Court to get his title cleared and established and thereafter he can seek sanction of the Collector for breaking-up of the block No. 1234 physically. I am not able to agree with Shri Pandit when he goes to the extreme that no previous sanction is necessary for his client. We have to harmonise the provisions of the Act. The sub-division of the land cannot be automatically done soon after the plaintiff had established his title. He has to approach the Collector with the decree in his hand and request the Collector to grant sanction before breaking-up of the block so that he would get actual possession of the suit land in accordance with the decree of the Civil Court.

16. It is not that breaking of the consolidated land is anathema to the Act. Section 8AA carves out an exception to the absolute provision described in Section 8 of the Act. If a break-up of the land is for the purpose of such transfer of a land it is permissible. Similarly transfer of fragment to a Government is also permissible. Furthermore the fragment wholly can also be compensated suitably. It is therefore not that the Act totally and absolutely prohibits each and every fragmentation of the land or break-up of the consolidated blocks. If we reconcile and harmonise the provisions of the Act it would be clear that the party who is seeking possession of certain land which forms part of a consolidated block has to first approach the Civil Court and establish his title and right to the said piece of land and it is thereafter that he has to approach the Collector to seek actual physical sub-division or breaking-up of the suit land from the consolidated block. I am not able to agree with the submission of Shri Rege that the first approach should be to the Collector and not to the Civil Court. The Appellate Court therefore is right in holding that the plaintiff had the property under the Sale Deed dated 16-9-1961 and that the said property was a contiguous piece of land with the block No. 1237 owned by the plaintiff himself which will not create any fragment of the land as contemplated by the Act and the Appellate Court was therefore right for that purpose that the permission of the Collector was not a condition precedent. For establishing title a decree of a Civil Court is essential and for subsequent and consequent sub-division and actual breaking-up of the suit land the permission of the Court is necessary. Before such previous sanction from the Collector the plaintiff will not be able to get the breaking-up of the consolidated block No. 1234 unless the title to the land is established. The Appellate Court, therefore has rightly observed that if such permission is necessary the plaintiff has to approach the Collector under Section 31(b) of the Act to seek sanction of the break-up of the suit land from the block No. 1234 which is in the possession of the defendants. It would be open to the plaintiff to approach the Collector to seek his previous sanction for sub-division or breaking-up of the block No. 1234. He shall do so within eight weeks from today. The Collector shall consider such application in accordance with law. Keeping in mind that the plaintiff has already established his lawful title to the suit land bearing No. RS. 241/1-B. He shall decide the physical break-up of the said land from the Block No. 1234 as early as possible within 3 months from the receipt of such application by the plaintiff. The Second Appeal is dismissed with costs throughout.