Bombay High Court
Shankar vs Bhaurao on 8 December, 2011
Bench: S. S. Shinde
1 sa245.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.245 OF 2011
WITH
CIVIL APPLICATION NO.12907 OF 2011
1. Shankar s/o Manikrao Waghmare,
Age: 48 years, Occ: Agri.,
R/o. Dagadwadi, Tq. Purna,
District Parbhani.
2. Bhimrao s/o Manikrao Waghmare,
Age: 55 yrs, R/o. as above. ...APPELLANTS
VERSUS
Bhaurao s/o Bapurao Waghmare,
Age: 55 years, Occ: Agri.,
R/o. Dagadwadi, Tq. Purna,
District Parbhani. ...RESPONDENT
...
Mr. D.R. Bhadekar, Advocate for appellants-
applicants.
Mr. A.B. Gaikwad, Advocate for respondent sole.
...
CORAM: S.S. SHINDE, J.
DATE : 8TH DECEMBER, 2011
ORAL JUDGMENT :
. Heard learned Counsel for the parties.
With the consent of both the parties, second
appeal is taken up for final hearing.
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2. Learned Counsel appearing for the
appellants submits that, Direction No.3 i.e.
"Enquiry of mesne profit shall be carried
separately under Order XX Rule 12 of Civil
Procedure Code" passed by the trial Court, is in
absence of any pleadings or prayers in the suit
and no such direction can be given in absence of
pleadings or prayers to that effect in the suit.
In support of his contention, learned Counsel for
the appellants placed reliance upon the judgment
of the Supreme Court in the case of Ganapati
Madhav Sawant (dead) Through his Lrs. vs. Dattur
Madhav Sawant, reported in 2008(3) S.C.C. 183 and
submitted that, the point raised herein is no more
res integra and is covered by the above said
pronouncement.
. Learned Counsel appearing for the
appellants further submits that, the land which is
the subject matter of this suit is purchased by
the respondent herein i.e. plaintiff without
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taking permission from the Collector. The learned
Counsel for the appellants invited my attention to
the provisions of Section 31 of the Bombay
Prevention of Fragmentation and Consolidation of
Holdings Act, 1947 (For short, "said Act") and
submitted that, once the consolidation scheme is
implemented, only adjoining owner can purchase the
land. It was not permissible for the plaintiff to
purchase the land who is not adjoining owner and
therefore, he submits that, such issue which is
raised by the appellants i.e. defendants is
required to be referred to the competent
authority. In support of his contention, the
Counsel placed reliance upon the judgment of the
Supreme Court in the case of Shevantabai Maruti
Kalhatkar vs. Ramu Rakhamaji Kalhatkar, reported
in 1998 (8) S.C.C. 76.
3. Learned Counsel appearing for the
respondent submits that, if the appellants are
aggrieved by the sale transaction between the
plaintiff and Damaji, in that case if it is
4 sa245.11
permissible, the appellants can challenge the said
transaction but in the suit filed by the
plaintiff, the contention of the appellants i.e.
original defendants that the plaintiff was not
entitled to purchase the said land, is rightly
rejected by the trial Court. Learned Counsel
further submits that, the relief of mesne profits
is ancillary relief and the main relief which was
prayed in the suit about the removal of
encroachment and possession of encroached portion.
Therefore, second appeal does not raise any
substantial question of law for consideration.
4. Upon hearing the Counsel for the parties,
the following questions of law falls for
consideration in the second appeal.
(1) Whether the trial Court is
correct in directing the enquiry
in mesne profits taking recourse
to the provisions of Order XX Rule
12 of the Code of Civil Procedure,
in absence of any pleadings and
5 sa245.11
prayers to that effect in the
plaint?
(2) Whether the appellants who are
original defendants can
question /challenge the said
transaction being contrary to the
provisions of Bombay Prevention of
Fragmentation and Consolidation of
Holdings Act, 1947 in a suit filed
by the respondent i.e. original
plaintiff?
5. So far the contention raised by the
Counsel for the appellants that in absence of any
pleadings or prayers in the suit, enquiry in the
mesne profits should not have been directed by the
trial Court as held in the case of Ganapati
(supra). It is admitted position that, the
plaintiff did not plead or pray for inquiry of
mesne profits and therefore, to that extent such
inquiry was directed by the trial Court by
direction in clause-3 of its order dated
12-12-2008 is required to be quashed and set
aside.
6 sa245.11
6. The second point which is raised by the
appellants that very purchase of the land by
plaintiff from Damaji is contrary to the
provisions of the said Act, is rightly negated by
the trial Court holding that if the appellants are
aggrieved, they can take recourse to the remedy
available under the said Act. The provisions of
Section 36-A and 36-B of the said Act enables the
aggrieved party to approach the competent
authority. Therefore, in my considered opinion,
view taken by the Courts below cannot be faulted.
If the appellants are aggrieved by the said
transaction between the plaintiff and Damaji, in
that case, appropriate remedy lies somewhere else.
7. Therefore, the judgment and order of the
trial Court except clause-3 i.e. "Enquiry of mesne
profit shall be carried separately under Order XX
Rule 12 of Civil Procedure Code" is confirmed.
However, direction No.3 as reproduced herein above
about enquiry of mesne profits is quashed and set
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aside.
8. If the appellants so advised, they can
take appropriate proceedings before the
appropriate Forum as permissible under law to
agitate their grievance that the said transaction
between the plaintiff and Damaji is contrary to
the provisions of the Bombay Prevention of
Fragmentation and Consolidation of Holdings Act,
1947. This Court has not expressed any opinion
about the merits of the matter.
9. Second Appeal stands disposed of on the
above terms. Consequently, Civil Application
stands disposed of.
sd/-
[S.S. SHINDE, J.]
sut/DEC11
