Raosaheb S/O Digambar Shinde vs Shakunalabai W/O Govindbuwa ...
2021 Latest Caselaw 11476 Bom

                                                                          sa-307-2021.odt


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                            SECOND APPEAL NO.307 OF 2021

                RAOSAHEB S/O DIGAMBAR SHINDE
                           VERSUS
    SHAKUNTALABAI W/O GOVINDBUWA PARWAT DIED THR LRS. SMT
           BEBI SAROJA W/O LAXMAN BHARTI AND ANR

                                             ...
                          Mr. V. I. Thole, Advocate for appellant.
                                             ...

                                    CORAM           : SMT. VIBHA KANKANWADI, J.

Reserved on : 03.08.2021 Pronounced on : 21.08.2021

ORDER :-

. Leave is granted to correct the name of the respondent.

2. Present appeal has been filed challenging the judgment and

decree passed in Regular Civil Appeal No.13 of 2010 by learned District

Judge-1, Hingoli on 06.02.2021, thereby partly allowing the appeal filed

by present respondents - original plaintiffs and thereby reversing the

judgment and decree passed by the learned Lower Court. Present

respondents - original plaintiffs had filed Regular Civil Suit No.105 of

2006 for declaration of ownership and recovery of possession before

learned Civil Judge Junior Division, Kalamnuri, Dist. Hingoli. The said

suit was dismissed by the learned Lower Court on 21.01.2009 and the

sa-307-2021.odt

original plaintiffs had challenged the said decree in Regular Civil Appeal

No.13 of 2010, which as aforesaid, was partly allowed.

3. Heard learned Advocate Mr. V. I. Thole for the appellant.

4. It is to be noted that the plaintiffs, who are the wife and daughter

of one Govindbuwa Parwat contended that they as well as defendant

No.2, who was the another daughter of deceased Govindrao Parwat, are

owners of the property. Their predecessor Govindbuwa was having

ancestral land admeasuring 2 H 16 R in Survey No.98 at village Babhli.

Apart from that he was also having 1 H 18 R land in Survey No.97 in the

same village. In the year 1975, plaintiff No.1 realised that name of

father of defendant No.1 was mutated in the revenue record to the

property and, therefore, she made inquiry. It was revealed that the said

property has been purchased by father of defendant No.1 on

02.08.1974. It is the field in Survey No.97. Therefore, plaintiff Nos.1

and 2 had filed Regular Civil Suit No.50 of 1975 against the father of

defendant No.1, however, they had withdrawn that suit with permission

to file a fresh suit on the same cause of action on 23.08.1977. It was

contended in the written statement filed in that suit by the father of

defendant No.1 that he is the Bataidar of land Survey No.98. It was the

contention of plaintiffs that when the scheme under Prevention of

Fragmentation and Consolidation of Holdings Act (hereinafter referred

sa-307-2021.odt

to as "Fragmentation Act") was implemented, the father of defendant

No.1 had managed to get his name mutated in the revenue record of

survey No.98 (Gut No.519) admeasuring 2 H 16 R. However, in the said

scheme, the property is reduced to 1 H 80 R. Plaintiffs contend that

they were unaware about the implementation of the scheme.

Thereafter, they had filed appeal before the Deputy Commissioner,

Aurangabad after withdrawal of the earlier suit. Plaintiffs could not file

fresh suit, but then the father of defendant No.1 agreed that he would

re-execute the sale deed in favour of plaintiff No.1. It was also stated

that he will give half share from the yields of the crop, however, plaintiff

No.1's husband expired and then she shifted to village Kawana, Tq.

Hadgaon, Dist. Nanded. According to her, defendant No.1's father was

regularly giving her yield and therefore, she had not bothered to the

entries in the 7/12 extract. She contends that the possession of father of

defendant No.1 and thereafter of defendant No.1 is permissive in nature

and the mutation entry cannot confer title to defendant No.1. They had,

therefore, filed suit for declaration of ownership and recovery of

possession. Defendant No.1 resisted the claim by filing written

statement and submitted that the suit is not within limitation. The suit

is also barred by the principles of res judicata. His father was Bataidar

earlier in respect of one of the land. It was also contended that the

sa-307-2021.odt

plaintiffs are not having any concern with the suit filed. His ownership

has been settled under the fragmentation scheme and, therefore, Civil

Court has no jurisdiction to try and entertain the dispute in view of bar

under Section 36-A of the Fragmentation Act .

5. The learned Trial Judge held that plaintiffs have failed to prove

that they are the owners of the suit properties. The suit is barred by

limitation and, therefore, plaintiffs are not entitled to get possession of

the suit land.

6. On the basis of same evidence, assessment has been done by the

learned first Appellate Court and it has come to the conclusion that the

jurisdiction of the Civil Court is not barred under Section 36-A of the

Fragmentation Act. Plaintiffs have proved that they are the owners of

the suit land, but then it was held that plaintiffs had failed to prove that

the area of suit land Gut No.519 is still measuring 5 Acres 16 Gunthas.

The suit has been held to be within limitation and, therefore, the appeal

has been partly allowed. The suit came to be partly decreed. The

plaintiffs were held to be the owners of Gut No.519 to the extent of 1

80 R. Defendant No.1 has been directed to hand over the possession of

that area to the plaintiffs.

7. It can be seen that there is no concurrent finding, rather the

findings are contrary to each other. The effects of many facts are

sa-307-2021.odt

required to be taken. Further, it has been contended by the learned

Advocate representing the appellant that both the Courts below have not

considered the plea of defendant No.1 that since the time of his father

they are the Bataidar as contemplated under Hyderabad Tenancy and

Agricultural Lands Act and, therefore, the Civil Court will not have

jurisdiction to try and entertain the suit. Both the Courts have only

considered the point of jurisdiction of the Civil Court from the point of

view of the provisions under the Fragmentation Act. Therefore,

substantial questions of law are arising in this case requiring admission

of the Second Appeal.

8. In Ashok Rangnath Magar Vs. Shrikant Govindrao Sangvikar,

[2015 Mh.L.J. Online (S.C.) 140 :: (2015) 16 SCC 763], it has been

observed thus :-

"18. In the light of the provision contained in Section 100, Civil Procedure Code and the ratio decided by this Court, we come to the following conclusion :

(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;

(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved,

sa-307-2021.odt

it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the respondent;

(iii) In no circumstances the High Court can reverse the judgment of the substantial question of law and complying with the mandatory requirements of section 100, Civil Procedure Code."

Therefore, in view of the aforesaid decision, notice is not required

to be issued to the respondents unless this Court comes to the

conclusion that there are substantial questions of law arising in this case.

9. As aforesaid, it appears that the point of bar to the jurisdiction of

Civil Court was considered only from the angle of Fragmentation Act

and though it was contended by the plaintiffs themselves that defendant

No.1's father in the written statement, that was filed in the earlier suit,

had claimed that he is Bataidar, then the effect and operation of tenancy

and agricultural land laws, was also required to be considered. Further,

the point of limitation has been decided by both the Courts contrary to

each other. It also appears that the scheme was finalized. Under such

circumstance, what were the effects of the finalization of the scheme

ought to have been properly considered is the submission that has been

made here, and therefore, taking into consideration all these aspects,

definitely, substantial questions of law as contemplated under Section

sa-307-2021.odt

100 of Civil Procedure Code are made out requiring admission of the

Second Appeal. Hence, the second appeal is admitted. Following are

the substantial questions of law :-

I) Whether the jurisdiction of the Civil Court was barred to entertain the suit under Section 36-A of the Fragmentation Act, 1947 as well as under the Hyderabad Tenancy and Agricultural Lands Act?

II) Whether the suit was within limitation in view of the fact that the earlier suit i.e. Regular Civil Suit No.50 of 1975 was got withdrawn by plaintiffs with permission to file fresh suit on the same cause of action and it was never filed till 14.12.2006?

III) Whether the plaintiffs have proved that they and defendant No.2 are the owners of suit land Gut No.519?

IV) Whether interference is required.

10. Issue notice to the respondents, returnable on 07.10.2021.

11. Call record and proceedings.

[SMT. VIBHA KANKANWADI, J.]

scm