Bombay High Court
Digamber Govind Gadhe Dead Th Lrs ... vs Raibhan Bhagaji Wadhe (Humbhar) ... on 7 March, 2016
Bench: R.V. Ghuge
30.WP.4367.11.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4367 OF 2011
Digamber Govind Gadhe (Wadhe)
(Since Deceased) Through L.Rs.
1-a) Dnyaneshwar Digamber Gadhe (Wadhe)
Age: 50 years, Occu.: Agri.,
R/o Lasur Station, Tq. Gangapur,
Dist. Aurangabad.
1-b) Sopan Digamber Gadhe (Wadhe)ig
Age: 45 years, Occu.: Agr.,
R/o Lasur Station, Tq. Gangapur,
Dist. Aurangabad.
1-c) Samindrabai Digamber Gadhe (Wadhe)
Age: 80 years, Occu.: Agri.,
R/o Lasur Station, Tq. Gangapur,
Dist. Aurangabad.
1-d) Mankarnikabai Ramdas Jadhav
Age: 55 years, Occu.: Agri.,
R/o Khirdi, Tq. Khultabad,
Dist. Aurangabad. ..PETITIONERS
VERSUS
Raibhan Bhagaji Wadhe (Khumbhar)
(Since Deceased) Through L.Rs.
1-a) Gangubai Murlidhar Kale
Age: Major, Occu.: Household,
R/o Balhegaon, Tq. Vaijapur,
Dist. Aurangabad.
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1-b) Yamunabai Ramesh Wakchaure,
Age: Major, Occu.: Household,
R/o Undirgaon, Tq. Srirampur,
Dist. Ahmednagar.
1-c) Indubai Madhukar Jordikar
Age: Major, Occu.: Household,
R/o Jorkathgaon, Tq. Sangamner,
Dist. Ahmednagar.
2) Shankar Raibhan Wadhe
Age: Major, Occu.: Agri.,
R/o Ramwadi, Tq. Kopargaon,
Dist. Ahmednagar.
3) Bhimraj Raibhan Wadhe
Age: Major, Occu.: Agri.,
R/o Ramwadi, Tq. Kopergaon,
Dist. Ahmednagar.
4) Sanjay Raibhan Wadhe
Age: Major, Occu.: Agri.,
R/o Ladgaon, Tq. Vaijapur,
Dist. Aurangabad.
5) Ramrao Bhagaji Wadhe (Kumbhar)
Age: 70 years, Occu.: Agri.,
R/o Ladgaon, Tq. Vaijapur,
Dist. Aurangabad. ..RESPONDENTS
....
Mr. S.P. Tiwari, Advocate holding for Mr. S.J. Gayke, Advocate for
petitioners.
Respondent No.1A is served.
Mr. R.L. Kute, Advocate holding for Mr. V.R. Dhorde, Advocate for
Respondent Nos.1B, 1C, 2 to 5.
....
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CORAM : RAVINDRA V. GHUGE, J.
DATED : 7th MARCH, 2016
ORAL JUDGMENT:
1. Rule. Rule made returnable forthwith and heard finally
by the consent of the parties.
2. The petitioners are the original plaintiffs in R.C.S. No.
382/1997. The same was filed for seeking declaration and
injunction against the respondents who are defendants.
3. The scheme of fragmentation and consolidation with
regard to the suit property was brought into effect in 1969-70 by
which Gut No. 109/2 was allotted a new Gut No. 217 in village
Ladgaon, Tq. Vaijapur, Dist. Aurangabad. The grievance of the
petitioner is that his share of land has been reduced. The suit
property admeasures 7 acres 37 R.
4. After the entire recording of oral and documentary
evidence was completed, the application Exhibit 144 was filed by
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the defendant praying for referring the matter to the District
Superintendent of Land Records, Aurangabad for deciding the issue
which would fall under Bombay Prevention of Fragmentation and
Consolidation of Holdings Act, 1947. The grievance of the
petitioner is that the said application should not have been
entertained since the Trial Court was competent to decide the same
looking to the fact that the first and the third prayer made in the
suit was squarely within the realm of the civil suit. The prayers for
declaration and perpetual injunction therefore cannot rest upon
reopening the scheme of fragmentation and consolidation. The
petitioner also relies upon the judgment of this Court in the matter
of Prabhakar Kushaba Hagwane and Others Vs. Yashwant Bhau
Hagwane, 1994(1) BCR 368.
5. Mr. Kute, learned Counsel for the respondents specifically
draws my attention to the ad-interim order passed by this Court on
01.12.2011, especially paragraph no.3 which reads as under:
"3) Till then, ad interim relief in terms of prayer
clause (C). However, it is made clear that, in case the
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impugned order dated 24.11.2010 is already acted
upon, there cannot be any stay to the said order."
6. He therefore submits that the impugned order has been
passed on 24.11.2010. The District Superintendent of Land
Records complied with the impugned order of the Trial Court and
has arrived at a conclusion on 21.10.2011. The petitioner filed this
petition on 06.05.2011 and circulated the matter for the first time
on 01.12.2011.
7. Mr. Kute therefore submits that this Court, while granting
interim relief to the petitioner and while issuing notice, observed
that if the impugned order dated 24.11.2010 was already acted
upon, there shall be no relief to the petitioner.
8. I have considered the submissions of the learned
Counsels.
9. I also find that the issue as to whether the scheme of
fragmentation and consolidation, after having been brought into
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effect, could be questioned or reopened after the limitation period
of three years has over, needs to be dealt with.
10. I am therefore of the view that ends of justice would be
met by disposing off this petition and directing the Trial Court to
decide R.C.S. No. 302/1997 by considering the decision of the
D.S.L.R. Dated 21.10.2011, as well as, the issue of limitation with
regard to the challenge to the scheme of fragmentation and
consolidation. The litigating sides would be at liberty to address
the mind of the Trial Court on all issues.
11. This petition is therefore disposed off with the directions
set out in the forgoing Paragraph No.10. Rule is discharged.
(RAVINDRA V. GHUGE, J.)
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