Wasudeorao S/O Jagdeorao Bondre vs Uday S/O Vinayakrao Deshmukh
2016 Latest Caselaw 2999 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 
                        NAGPUR BENCH, NAGPUR




                                                                                                               
                                            WRIT PETITION No.159 OF 2015

    Wasudeorao s/o Jagdeorao Bondre,




                                                                                                              
    aged 55 years, Occu. Cultivator, 
    R/o Gaiwadi, Tq. Daryapur, 
    District Amravati.    ...           ...                                                                            ...          Petitioner.

                                                ..Versus..




                                                                                       
    Uday s/o Vinayakrao Deshmukh,                         
    Aged 50 years, Occu. Cultivator and
    Busienss, R/o Pusada, 
    Tq. & Dist. Amravati. ...          ...                                                                             ...      Respondent.
                                                         
    .......................................................................................................................................................

Mr. R.J. Shinde, advocate for petitioner.

Mr. V.G. Palshikar, advocate for the respondent. .......................................................................................................................................................

                                                            CORAM                 :  A.S. CHANDURKAR, 
                                                                                                         J.
             



                                                            DATED                 :  20 th
                                                                                            JUNE,
                                                                                                  2016.

    ORAL JUDGMENT.

In view of notice for final disposal, the learned counsel for the

parties have been heard at length.

2. The petitioner is the original defendant in a suit filed by the

respondent for possession of the suit field based on sale deed dated

9.9.2002. In the said suit the trial court framed issues on 4.2.2013.

Thereafter the defendant moved an application below Exh. 60 praying that

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the proceedings in the suit be stayed and issue no. 4A be referred to the

Sub-Divisional Officer as the said issue related to question as to whether

the sale deed was hit by the provisions of Bombay Prevention of

Fragmentation and Consolidation of Holdings Act, 1947 ( for short the

Act). By the impugned order, the trial court rejected the said application.

3. Shri Shinde, the learned counsel for the petitioner, submitted

that the issue no. 4A would have to be decided only by the Sub-Divisional

Officer and the civil court had no jurisdiction to decide the same.

According to him, the sale deed in question was hit by the provisions of

the said Act and therefore the issue ought to have been referred for

adjudication to the Sub-Divisional Officer. In support of his submission

the learned counsel placed reliance on the judgment of learned Single

Judge in W.P. No.70/2009 ( Mohammad Iqbal Vs. Tulsiram Baliram Dhole

and others).

4. Shri Palshikar, the learned counsel for the respondent, on the

other hand, submitted that the plaintiff was first required to establish his

title and in case such title was established, the matter would come up

before the Collector for deciding whether the decree should be executed as

the same related to fragmented land. In that regard he placed reliance on

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the judgment of learned Single Judge reported in 2002(2) Mh.L.J. 623

(Sidagonda Avagonda Sardar Patil and another Vs. Bhimgonda Kadkgonda

Kushappa Patil deceaed by his heirs Babgonda and others). It is submitted

that this Court had held that the plaintiff had to first establish his title and

thereafter approach the Collector for granting permission.

5. I have heard the respective counsel for the parties and have

given consideration to their submissions. The trial court in the impugned

order observed that issue no. 4A had been wrongly framed as the sale

deed in question was admittedly executed by the defendant. It was held

that only after the decree was passed by the Court, that the role of the

Collector would come into picture. In Sidagonda Avagonda Sardar Patil

and another Vs. Bhimgonda Kadgonda and others (supra) it was held that

where plaintiff seeks possession of the suit land on the basis of title, he has

to first establish his title in the civil court. After title is established, he can

then approach the Collector for sub-division of the land in question. The

facts of the aforesaid case are identical to the case in hand. It is the

respondent who has filed the aforesaid suit for declaration of his title. In

case he succeeds in the suit he would have to approach the Collector for

seeking sanction of the sub-division. In the light of the aforesaid law, I do

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not find that the trial court committed any error in rejecting the

application.

In view of aforesaid, there is no question to interfere with the

order. The parties are at liberty to follow the course that has been

prescribed in para 15 and 16 of the judgment in Sidagonda and another

Vs. Bhimgonda and others (supra) after decision in the suit. The petition

is disposed of in aforesaid terms. No costs.

JUDGE

Hirekhan

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