Bombay High Court
Rambhau Bajaba Salunke vs Pandurang Santu Salunke And Ors on 20 January, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
915 SECOND APPEAL NO.268 OF 2011
WITH
CA/6994/2011 IN SA/268/2011
RAMBHAU BAJABA SALUNKE
VERSUS
PANDURANG SANTU SALUNKE AND ORS
...
Advocate for Appellant : Mr. Jayabhar Dattatraya R.
AGP for Respondents:
Advocate for Respondent No.1-A, 2-A, 3 and 4 : Mr. Y. V. Kakde
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 20-01-2021.
ORAL ORDER :
1. Present appeal has been filed by the original defendant
challenging the Judgment and decree passed in Regular Civil Appeal
No.288 of 2005 by learned District Judge 1, Ahmednagar on 07-01-
2011 whereby the appeal filed by the original plaintiffs came to be
partly allowed. The impugned Judgment by the Trial Court was set
aside to the extent of refusing to grant the injunction and then the
present appellant i.e. respondent in the first appeal was perpetually
restrained from obstructing to the possession of the plaintiffs over the
suit land Block No.1480 admeasuring 3 H 11 R either by themselves or
through anybody else, except in due course of law. It is to be noted
2 SA 268-2011
that the original suit i.e. Regular Civi Suit No.193 of 1993 was filed
by the present respondents for declaration and perpetual injunction
and the suit was dismissed by learned Civil Judge, Junior Division,
Parner Dist. Ahmednagar on 16-07-2005.
2. Heard learned Advocate Mr. D. R. Jayabhar appearing for the
appellant.
3. Learned Advocate Mr. Y. V. Kakde for the respondents No.1-A,
2-A, 3 and 4 is absent.
4. The plaintiffs had come with a case that the suit land was their
ancestral property. Consolidation scheme was implemented in their
village Vasunde Tq. Parner Dist. Ahmednagar in 1973-1974 under
The Bombay Prevention of Fragmentation and Consolidation of
Holdings Act, 1947 (hereinafter referred to as "the Consolidation
Act") It is stated that under the scheme some agricultural lands
were exchanged between the plaintiffs and the defendants, and in
view of that exchange they got the possession of the respective
lands. It is stated that the defendants got annoyed and started
obstruction to the possession of the plaintiffs, and therefore, they
had filed the suit.
3 SA 268-2011
5. Defendant No.1 had contested the claim by filing written
statement and it appears that then defendant No.2 had adopted the
written statement filed by the defendant No.1 by filing a pursis at
Exhibit 20. It was admitted that the consolidation scheme was
implemented in their village. It was stated that on paper it was
shown that some agricultural land of the defendants was allotted to
the plaintiff. Further it appears that by way of additional written
statement the defendants contended that Block No.1480, which is
the suit property, was consisting of the earlier various survey
numbers including land Survey No.34/2B admeasuring 42 R owned
and possessed by defendant No.1. Though it was shown that the
said piece of land was given to the predecessor in title of the
plaintiffs namely Santu Salunke, but he was never put in possession
of the same. The defendant is cultivating he said land. Tahsildar,
Parner has executed a panchanama and revenue record shows that
he is still possessing the same. It was then contented that the suit
is not maintainable under the provisions of Specific Relief Act.
6. After the issues were framed, parties have led oral as well as
documentary evidence. It was held by the learned Trial Judge that
except 42 R land of original Survey No.32/2B, the plaintiffs
4 SA 268-2011
possessed rest of the area from Block No.1480. It was held that the
plaintiffs have failed to prove obstruction at the hands of the
defendants. Suit was held to be maintainable under the provisions
of Specific Relief Act and it was also held that the suit is within
limitation. It was held that the plaintiffs are not entitled to the relief
of declaration as well as injunction and then the suit came to be
dismissed.
7. The said decree was challenged by the original plaintiffs in
above said Regular Civil Appeal No.288 of 2005, and after hearing
both sides as aforesaid, the learned Additional District Judge has
partly allowed the appeal. This is giving rise to the second appeal.
8. It will not be out of place to mention here that if this Court
intends to admit the second appeal then only the law points are
required to be framed, and if after hearing the parties concerned, if
this Court is of the opinion that no law points are shown, then law
points are not required to be framed. Here at this stage benefit can
be taken of the recent pronouncement by the Hon'ble Apex Court in
Kirpa Ram (Deceased) Through Legal Representatives and Others v.
Surendra Deo Gaur and Others, reported in 2020 SCC OnLine SC
935, wherein it has been held that,
5 SA 268-2011
"23. Sub-section (1) of Section 100 of the Code
contemplates that an appeal shall lie to the High
Court if it is satisfied that the case involves a
substantial question of law. The substantial question
of law is required to be precisely stated in the
memorandum of appeal. If the High Court is
satisfied that such substantial question of law is
involved, it is required to formulate that question.
The appeal has to be heard on the question so
formulated. However, the Court has the power to
hear appeal on any other substantial question of law
on satisfaction of the conditions laid down in the
proviso of Section 100 of the Code. Therefore, if the
substantial question of law framed by the appellants
are found to be arising in the case, only then the
High Court is required to formulate the same for
consideration. If no such question arises, it is not
necessary for the High Court to frame any
substantial question of law. The formulation of
substantial question of law or reformulation of the
same in terms of the proviso arises only fi there are
some questions of law and not in the absence of any
substantial question of law. The High Court is not
obliged to frame substantial question of law, in case,
it finds no error in the findings recorded by the First
Appellate Court."
9. It has been vehemently submitted on behalf of the appellant
6 SA 268-2011
that plaintiffs never challenged the consolidation scheme before
appropriate authority and they could not have challenged the same
before the Civil Court as there is specific bar under Section 36-A of
The Bombay Prevention of Fragmentation and Consolidation of
Holdings Act, 1947. Reliance has been placed on the decision in
Yeshwant Ramchandra Dhumal deceased by L.Rs. v. Shri Shankar
Maruti Dhumal and Another, reported in AIR 2001 Bombay 384,
wherein it has been observed that,
"11. It is settled law that the question of jurisdiction
of Civil Court must not be readily inferred unless it is
expressly excluded or must be taken to be so
excluded by necessary implication. Having regard to
the scheme of the present Act, the relevant
provisions of which have been reproduced above, I
am of the view that the jurisdiction of Civil Courts is
barred by S. 36-A of the Act where the question is
one relating to putting a owner in possession of the
holding to which he is entitled under the scheme."
It is further submitted that perusal of document at Exhibit 44 which
came to be exhibited in the testimony of DW.1 Chandrakant who
was serving in Taluka Inspector of Land Records Office, Parner, it is
very much clear that the said document which is styled as
7 SA 268-2011
possession receipt was not signed by Santu and even there is
endorsement by the Consolidation Officer Shri G. B. Pai in the year
1975 "Not entered into possession." This shows that the actual
delivery of the possession to the concerned farmers when the work
of the scheme was undertaken was not completed, and therefore, it
cannot be stated that the work was entirely completed in respect of
the said village. If at all there was any dispute in respect of the
implementation of the said scheme, the plaintiff ought to have
approached the Settlement Commissioner or the appropriate
authority under Consolidation Act. The effect of Exhibit 44 is
properly considered by the learned Trial Judge, and therefore, even
the plaintiffs themselves were aggrieved by those observations and
in the appeal memo at ground No.3 and 4 they themselves have
stated that the learned Civil Court had no jurisdiction under the
scheme, yet the learned Appellate Court failed to consider the said
point and assumed its jurisdiction, and therefore, law point in
respect of the same is arising.
10. It has been further submitted on behalf of the appellant that
the 7/12 extract of Survey No.34/2B stands in the name of the
appellant and it shows that the appellant is cultivating the same.
8 SA 268-2011
Panchanama was prepared by Tahsildar in respect of the factual
aspect and the said panchanama shows that the appellant is in
possession and cultivation of 42 R land. The learned First Appellate
Court erred in overlooking the said fact and further observing that
Exhibit 77 which is the copy of Form No.5-A under Rule 18-A of the
Consolidation Act shows that present appellant had handed over the
possession, and therefore, Santu might have been put in possession
of the said land. Exhibit 77 was contrary to the 7/12 extracts, and
therefore, the point of possession is also not considered by the First
Appellate Court properly, it is therefore, also giving question of law.
Learned Advocate for the appellant, therefore, prayed for admitting
the second appeal.
11. At the outset, it is to be noted from the documents those have
been exhibited and the oral evidence that what is admitted to both
the parties is the implementation of the consolidation scheme to
village Vasande. Now as regards the exchange of land is concerned,
defendant admits that 42 R land from Survey No.34/2B, which was
belonging to him, was made part of Block No.1480 under the
scheme, but then he says that actual possession of that land was not
taken from him and was not handed over to Santu. The
9 SA 268-2011
documentary evidence in the form of Exhibit 44 has been relied by
the defendants to canvas the above said contention. However, it is
to be noted that the 7/12 extract of Block No.1480 shows its area as
3 H 11 R as per Exhibit 70-A, 71 and 72. In none of these 7/12
extracts for different years it is stated that 42 R land out of that
block number was in possession of the appellant. He never objected
the preparation of these 7/12 extracts before the appropriate
authority. At the cost of repetition it can be said that formation of
Block No.1480 was in the form of various block numbers, that is
portion from various block numbers which is inclusive of Survey
No.34/2B. Now it is to be noted from the testimony of DW.1
Chandrakant who was serving in Taluka Inspector of Land Records
that the possession receipt was not signed by Santu as well as there
is endorsement by the concerned officer at that time. Perusal of
Exhibit 44 would show that it is a certified copy. No pains were
taken to bring the original. In fact Exhibit 44 appears to be form
No.5-A under Rule 18-A of the Consolidation Act. Though the
Survey No.34/2B is mentioned, it is stated that, at one place there is
no signature and there is then endorsement, "Not entered into
possession." We cannot read Exhibit 44 in isolation for the simple
reason that it has come on record that in exchange of Survey
10 SA 268-2011
No.34/2B, Survey No.420/2B was given to the defendant No.1. Now
in order to prove this exchange, Exhibit 77 has been produced which
is the form No.5-A under Rule 18-A of the said Act which was
executed by the defendant on 27-03-1975, and it specifically says
that, he has given possession of 34/2B for formation of Block
No.1480 and on the back side of the said document which has
executed on the same date, he has accepted the possession of Block
No.420/2B. Now he is denying in his cross-examination that he has
received the possession of the land which was earlier belonging to
the predecessor in title of the plaintiffs. Important point to be noted
is that in his cross-examination conducted on behalf of the
defendant P.W.1 Pandurang Salunke has stated that, his Survey
No.420 was given to defendant and others. He says that 45 Guntha
land belonging to them was given to defendant and the possession
receipt was executed in 1974. These were the questions asked on
behalf of the defendant and the answers given by the plaintiff will
have to be then taken into consideration to see that there was
exchange, and therefore, it was rightly observed by the First
Appellate Court that now the defendant cannot take advantage of
some other revenue record. Exhibit 77 would show that the fact was
verified by the Consolidation Officer on 19-12-1975, that means the
11 SA 268-2011
confirmation was from Consolidation Officer in respect of the same.
Consolidation Officer cannot then say that the land which was taken
from the defendant was not given to the predecessor in title of the
plaintiff.
12. One more aspect that is required to be considered is that the
Judgment delivered by the Sub-Divisional Officer, Ahmednagar on
07-06-1995 which is at Exhibit 32. Present plaintiffs had filed an
application before Mamlatdar under the Mamlatdars' Courts Act
bearing No.06 of 1993, it was decided on 19-09-1993, and it
appears that before the Sub-Divisional Officer the plaintiffs had filed
a revision. The revision came to be allowed. It was then observed
that the defendant therein who is also the defendant in this case i.e.
present appellant, raised dispute in respect of the consolidation
scheme, and therefore, it was suggested to the defendant that he
should approach the Consolidation Officer or the Settlement
Commissioner of Land Records, Nashik. Thus, it can be seen from
the said Judgment that already the advise was received by the
present appellant to raise dispute before the appropriate authority
under the Consolidation Act. But it appears that he has not
approached and now he want to raise an objection that the Civil
12 SA 268-2011
Court had no jurisdiction. Important point to be noted is that from
the frame of the suit it was for declaration and ownership,
declaration was to the extent of declaring him to be the owner of the
entire block. It might be as a precaution that the said prayer might
have been made taking into consideration the earlier history. But
the learned lower Court had held that the suit was maintainable.
Further it can also be seen that no pains were taken by the present
appellant to raise specific question of jurisdiction and get issue
framed in respect of the same. Now in a Second appeal he cannot
raise that the point of jurisdiction was not considered by both the
Courts below. He cannot take advantage of the grounds those have
been mentioned in the appeal memo by the present respondent.
However, careful perusal of those grounds at Serial No.3 and 4 in
the appeal memo would show that according to the appellant therein
the fact was not considered by the Trial Court that the block was
formed after consolidation scheme was implemented, and therefore,
in that connection it was stated that the learned Civil Court had no
jurisdiction under the scheme. The interpretation that is tried to be
given by the learned Advocate for the appellant was not in the mind
of the appellant before the First Appellate Court. The ratio laid down
in case of Yashwant Dhumal (Supra) cannot be disputed. In fact, it
13 SA 268-2011
is a settled law but as regards the present case is concerned, it
appears from the written statement that was filed by the present
appellant that he never raised a specific point regarding bar of
jurisdiction under Section 36-A of the Consolidation Act. Perusal of
the written statement would show that it is only stated that the suit
is not maintainable under Specific Relief Act. There was no attempt
during the entire trial before the lower Court which went on for 11
years 10 months and 22 days to get a specific issue framed to that
effect, and therefore, at the cost of repetition it is stated that the
said point cannot be considered in second appeal for the first time.
13. Taking into consideration all the above aspects it can be seen
that from the Judgment of the First Appellate Court, all the points
are properly considered and it has been correctly held that, as
regards the specific area of 42 R comprising of original Survey
No.34/2B which was after the consolidation scheme was
implemented was absolved in Block No.1480 admasuring 3 H 11 R.,
the plaintiffs were continuously shows to be in possession and in
cultivation. The other revenue record which was specifically for
Survey No.34/2B could not have been in existence after the
consolidation scheme ; the defendant cannot take advantage of the
14 SA 268-2011
said record, and therefore, the appeal was rightly partly allowed. No
substantial questions of law have been shown, therefore, second
appeal is disposed of as not admitted. Civil Application No.6994 of
2011 also stands disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
