Bombay High Court
Ramprasad Narayandas Chechani vs The State Of Maharashtra And Ors on 13 October, 2021
Bench: V. V. Kankanwadi
sa-86-2012 with ca with WP.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.86 OF 2012
WITH CA/1333/2012 IN SA/86/2012
MURLIDHAR S/O RAMNARAYAN CHECHANI DIED THR. LRS
OMPRAKASH S/O MURLIDHAR CHECHANI AND OTHERS
VERSUS
NARAYANDAS S/O RAGHUNATHDAS CHECHANI DIED THR. LRS
RAMPRASAD S/O NARAYANDAS CHECHANI AND OTHERS
...
Mr. D. P. Palodkar, Advocate for appellants.
Mr. P. R. Katneshwarkar, Advocate for respondent Nos.1-B and 1-C
Mr. B. V. Virdhe, AGP for respondent Nos.1 to 4.
...
WITH
WRIT PETITION NO.8195 OF 2011
RAMPRASAD NARAYANDAS CHECHANI
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Mr. P. R. Katneshwarkar and Mr. A. S. Bajaj, Advocate for the petitioner.
Mr. B. V. Virdhe, AGP for respondent Nos.1 to 4.
Mr. D. P. Palodkar, Advocate for respondent Nos.5 and 6.
...
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 29.07.2021
Pronounced on : 13.10.2021
ORDER :-
. Present second appeal has been filed by the original defendants
challenging the concurrent judgment and decree. Present respondents
are the original plaintiffs, who had filed Regular Civil Suit No.422 of
sa-86-2012 with ca with WP.odt
2001 for perpetual injunction before learned II nd Joint Civil Judge Senior
Division, Jalna. The said suit came to be decreed on 04.03.2004. The
present appellants filed Regular Civil Appeal No.32 of 2004 before the
learned District Court, Jalna. The said appeal was heard by learned
District Judge-1, Jalna and dismissed on 12.11.2009. Hence, the second
appeal.
2. The writ petition has been filed by respondent No.2 in the second
appeal who was original plaintiff No.2 to challenge the order passed by
the Superintendent of Land Records, Jalna dated 30.09.2010 in
Consolidation No./C.S.R./68/2001 and judgment and order dated
26.08.2011 passed by the Hon'ble Revenue and Forest Minister,
Government of Maharashtra, in Revision Application No. REV. 39(A)11/
Case No.188/L-1.
3. Heard learned Advocate Mr. D. P. Palodkar for appellants in
second appeal and for respondent Nos.5 and 6 in writ petition, learned
Advocate Mr. P. R. Katneshwarkar for respondent Nos.1B and 1C in
second appeal and for the petitioner in writ petition and learned AGP
Mr. B. V. Virdhe for respondent Nos.1 to 4 in second appeal as well as
writ petition. (hereinafter the parties are referred by their nomenclature
in the original suit for the sake of convenience ).
sa-86-2012 with ca with WP.odt
4. It has been vehemently submitted on behalf of the learned
Advocate for the original defendants that plaintiffs and defendants are
related to each other and they represent two branches. Earlier, there
was partition between those branches as they were having 28 Acres 27
Gunthas land situated in Survey No.57 village Shelgaon, Tq. Badnapur,
Dist. Jalna. It was subdivided into four divisions 57/1 to 57/4. Out of
that, it is said that 57/1 admeasuring 17 Acre went to plaintiffs. Survey
No.57/2 and 57/4 admeasuring 5 Acres 20 Gunthas each went to
defendants and it is stated that 57/3 admeasuring 27 Gunthas was kept
in common. It is stated that during the implementation of the
consolidation scheme, Raghunath Chechani who was having Survey
No.56/3 admeasuring 14 Acres 9 Gunthas and adjacent to it there was
Survey No.57/1 was assigned Block No.167, thus, his holding was to the
extent of 31 Acres and 19 Gunthas. However, further land of 2 Acres 31
Gunthas bearing Survey No.57/5 was wrongly merged in Block No.167
during the consolidation scheme. In fact, there was no such land bearing
Survey No.57/5, so as to increase the area of Block No.167. It was the
contention of defendants that excess area shown in favour of
Raghunath, in fact, belong to defendant and his brother Satyanarayan.
On 05.01.1990, there was an agreement between the defendant, his
brother Satyanarayan and deceased Raghunath. It was admitted that
sa-86-2012 with ca with WP.odt
area of land bearing Survey No.57/4 has been wrongly merged in the
name of Raghunath by showing it as Survey No.57/5. He gave consent
for the correction. In fact, Raghunath never cultivated the land
personally, nor the plaintiffs are possessing the suit land, yet, the suit
was filed for perpetual injunction. The defendants, therefore, went to
the settlement commissioner i.e. Deputy Director of Land Records, Jalna
for correction of the area in block number. As regards the suit is
concerned, in the written statement, a specific defence was taken that
the plaintiffs are not possessing the suit land and, therefore, the
defendants cannot be injuncted, however, the learned Trial Judge went
on to hold that since the revenue records show the possession of the
plaintiffs and the defendants have not brought any relief by way of
counterclaim, the injunction has been granted. The first Appellate Court
also failed to consider the oral as well as documentary evidence on
record. It was not considered that Raghunath was not holding
agricultural implements and bullocks for cultivating the land. Both the
Courts have discarded the defence taken by defendants that there was
wrong entry at the time of consolidation. Further, now the position
stands that the settlement commissioner i.e. Superintendent of Land
Records, Jalna has given decision in favour of defendants and admitted
that there was mistake committed while implementing the consolidation
sa-86-2012 with ca with WP.odt
scheme. So also, the Hon'ble Minister has dismissed the revision filed by
the plaintiffs. The finality achieved to their decision is required to be
considered and this evidence can be considered by this Court under
Section 103 of the Code of Civil Procedure. Substantial questions of law
are, therefore, arising in this case requiring admission of the second
appeal.
5. Learned Advocate for original defendants pointed out the
affidavit-in-reply filed on behalf of the respondent Nos.2 and 3 in the
writ petition i.e. State Government Officers, in which it is stated that a
clarification has been given as to how the entries were wrongly made at
the time of implementation of the consolidation scheme. The
corrigendum came to be submitted before respondent No.2 by
respondent No.3 in the writ petition as per Section 31-A of The Bombay
Prevention of Fragmentation and Consolidation of Holdings Act, 1947
(hereinafter referred to as the 'Fragmentation Act'). In fact, even the
land was measured. The petitioner in the writ petition was present
when the measurement had taken place. The said correction has been
made on the basis of the application filed by the defendants on
28.09.2001. The judgment and order passed by the Hon'ble Minister has
also been pointed out wherein he has stated that in order to correct that
incorrect record, powers under Section 32(1) of the Fragmentation Act
sa-86-2012 with ca with WP.odt
can be used by the settlement commissioner and accordingly, it has been
used.
6. Further, affidavit has been filed by one Pradip Annasaheb Patil
working as Deputy Director of Land Records, Aurangabad Region, which
was filed for a limited purpose and it was as per the orders passed by
this Court on 27.06.2013. He has clarified that the order passed by the
Deputy Director of Land Records on 30.09.2010 is a final order and it is
made after following prescribed procedure as laid down in Section 31-A
of the Fragmentation Act. Even respondent Nos.5 and 6 i.e. present
appellants had filed the affidavit-in-reply, which is almost the same
repetition of their written statement in the civil suit. The learned
Advocate for the original defendants, therefore, submitted that the writ
petition deserves to be dismissed.
7. Per contra, the learned Advocate appearing for respondent No.1-B
and 1-C in the second appeal supported the reasons given by both the
Courts below and submitted that no substantial questions of law are
arising in this case. Learned Advocate representing the petitioner in the
writ petition submitted that the application which was made by
respondent No.5 in the writ petition was belated and the authorities
under the Fragmentation Act ought not to have entertained the said
sa-86-2012 with ca with WP.odt
application. No reasons were given for such belated application. While
taking objection to the said application, all the necessary facts were
disclosed by the petitioner. No proper opportunity was given to the
petitioner by the authorities under the Fragmentation Act to put forth
his say. The order passed by the Deputy Director of Land Records has
also not given proper reasons and, therefore, the writ petition deserves
to be allowed.
8. At the outset, it is to be noted that the suit that was filed by the
respondents in second appeal was for perpetual injunction. They had
come with the specific case that they are in possession of the suit
property. Important point to be noted is that in the 7/12 extract of the
suit property, the name of plaintiff is written. They have produced the
7/12 extract at Exhibit-65 and 67 as well as the consolidation statement
at Exhibit-69. The learned first Appellate Court after relying on the
decision in Kuldip Chand and Anr. Vs. Advocate General To Government,
[2003 SAR (Civil) 234] taken note of the fact that in terms of Section 35
of the Evidence Act, the entries in the revenue record would be
presumed to be correct although the same is rebuttable. Further, reliance
was placed on the decision of this Court in Shri. Govind Anand Goltekar
Vs. Shri. Dashrath Deoba Goltekar, [2006 (2) BCJ 535], wherein it was
held that entries in revenue record is having presumption as to
sa-86-2012 with ca with WP.odt
correctness and sufficient to shift the onus of the proof on the party
disputing the same. Therefore, when the revenue entries were standing
in the name of plaintiffs, a prima facie presumption was raised in their
favour. The onus had then shifted to the defendants to rebut the said
presumption.
9. In order to rebut that presumption, defendants had examined
D.W.1 Murlidhar Chechani, who admitted that the consolidation scheme
was implemented in their village in the year 1970. According to him, he
realized the mistake in the year 1989-1990, but it appears that he has
not given any reason as to why he had not objected to the revenue
records prepared after the consolidation immediately. Whatever
objection has been raised is after the institution of the suit by the
plaintiffs in this case. No doubt, as per the Fragmentation Act, the
appropriate authority would be the Superintendent of Land Records to
correct the entries and the record of the consolidation scheme, however,
that should be done as per the procedure of law and not at the whims of
any authority. When no reason is coming forward from the defendant's
side as to why objection was not raised immediately, if there was any
mistake and as per Section 31-A of the said Act, it would be clerical
mistake, then why it should take so many years to get it corrected.
Further, we will have to consider the admission given by D.W.1-
sa-86-2012 with ca with WP.odt
Murlidhar that he had come to know about the mistake committed in
the year 1989-1990, yet the proceedings which are under challenge in
the writ petition on the basis of application given by the defendant was
in view of application submitted by him on 28.09.2001. So, even after
realisation of the mistake in the year 1989-1990, he has slept over the
rights till 2001, if at all he is having.
10. Another fact on which the defendant is harping upon is the
alleged agreement or document which is stated to have been signed by
the father of plaintiff No.1 Exhibit-86. However, both the Courts below
have raised suspicion over this document and reasons for the said
suspicion have been mentioned in the judgment. The first and the
foremost reason is that in spite of such agreement alleged to have been
executed in the year 1990, why the defendant has not put it to execution
even till 2001 is a question. The said agreement could not have been
got executed, just to be kept in cupboard. Immediately after the alleged
execution of the said document Exhibit-86, it could have been used for
getting the correction made in the consolidation scheme record as well
as in the revenue records of the suit property.
11. The defendants disputed the implementation of the consolidation
scheme itself and formation of Gut No.167, however, as aforesaid the
sa-86-2012 with ca with WP.odt
scheme was implemented in the year 1970, the realisation of the
mistake was in the year 1989-1990, alleged execution of document
Exhibit-86 was in the year 1990, still no legal steps till 2001; all these
acts definitely go against the defendants and on that count both the
Courts were justified in holding that the defendant has failed to rebut
the presumption that is attached to the revenue record.
12. The oral evidence has been given by the defendants to support
their contention about the possession over the suit property, however,
that has been discarded by both the Courts below. It need not be re-
appreciated here.
13. The learned first Appellate Court has also dealt with the point
raised on behalf of defendants that the consolidation authorities have
not issued certificate in the name of father of plaintiff No.1 while
forming Gut No.167. Reliance has been placed on the decision in
Prabhakar Kushaba Hagwane and others Vs. Yashwant Bhau Hagwane
since dead by his legal representatives, [1994 (1) Bom. C.R. 368],
wherein this Court has held that "issuance of transfer certificate under
Section 22 and 24 of Bombay Prevention of Fragmentation and
Consolidation of Holding Act, 1947 is a matter of procedure and is only
the evidence of the transfer which has already taken place. Vesting of
sa-86-2012 with ca with WP.odt
the title in the consolidation holdings, thus, does not depend upon the
grant of certificate of transfer, or in other words, transfer is not effected
on the basis of transfer certificate." Therefore, production of transfer
certificate in respect of Gut No.167 by the plaintiffs was not mandatory
at all. Both the Courts below after taking into consideration the
evidence on record held that the plaintiffs have established lawful
possession referable to title and, therefore, the possession of the
plaintiffs is protected by decree.
14. Taking into consideration the above discussion, no substantial
questions of law are arising in this case as contemplated under Section
100 of the Code of Civil Procedure for admitting the second appeal. It
deserves to be dismissed.
15. Turning towards the writ petition, it is to be noted that as per the
affidavit filed by Mr. Pradip Annasaheb Patil - Deputy Director of Land
Records, Aurangabad Region, while correcting the consolidation record,
the authority has used the powers under Section 31-A of the
Fragmentation Act and according to him, it is final order. However, it is
to be noted that the Hon'ble Minister, who decided the revision has
stated that settlement commissioner was justified in using his powers
under Section 32(1) of the Fragmentation Act. Therefore, the affidavit
sa-86-2012 with ca with WP.odt
filed by Mr. Pradip Annasaheb Patil, the Deputy Director of Land
Records, Aurangabad Region, appears to be in ignorance of the decision
by the Hon'ble Minister.
16. At the outset, if we consider the application that was made by
respondent No.5 in the writ petition, he has not quoted the Section in
which he intended to have correction. His application is totally silent as
to why he is giving the said application belatedly i.e. after about 31
years. In spite of lapse of so many years, it appears that the settlement
commissioner or Deputy Director of Land Records has promptly
entertained the said application. Even the measurement has been made
which according to the writ petitioner is behind his back. When it was
only the clerical mistake that is required to be corrected, whether the
authorities under the Consolidation Scheme could have taken up the act
of measurement is a question. Section 31-A of the Fragmentation Act
empowers the concerned authority to correct the clerical or arithmetical
mistakes only. If we peruse the order dated 30.09.2010 passed by
Deputy Director of Land Records, Aurangabad, then it can be seen that it
contains no reason at all as to why need has arisen to correct the alleged
arithmetical or clerical mistake. It totally suffers from application of
mind on the point that whether such application would be maintainable
after such a long delay. No doubt, Section 31-A or Section 32 of the
sa-86-2012 with ca with WP.odt
Fragmentation Act does not prescribe any period of limitation, however,
in this respect reliance can be placed on the decision by the Division
Bench of this Court in Gulabrao Bhaurao Kakade since deceased by LRs.
and others Vs. Nivrutti Krishna Bhilare and others, [2001 (4) Mh.L.J.
31] wherein following observations have been made :-
"6. The power given to the Settlement Commissioner for
variation of the scheme is on account of an error other than
that referred to in section 31A, irregularity or informality
after following the procedure prescribed. Though there is
no time limit prescribed under Section 32(1) for the
Settlement Commissioner to vary the scheme which has
come into force, but obviously even in the absence of any
period prescribed under section 32, the said power can only
be exercised within reasonable period in any case. What
would be the reasonable period for exercise of power under
Section 32(1) by the Settlement Commissioner may depend
on facts and circumstances of each case and we do not
intend to lay down any specific period for exercise of that
power by Settlement Commissioner but ordinarily exercise
of such power after three years of finalisation of scheme
under section 22 may not be Justified. In the facts and
circumstances of the present case, the exercise of power by
Settlement Commissioner for variation of scheme which has
come into force in the year 1973, by initiating proceedings
in the year 1988 cannot be said to be within reasonable
time. The fact is and that is not disputed that the earlier
scheme was finalised in the year 1973 under the Act of
1947 to the knowledge of all the parties concerned. Nobody
sa-86-2012 with ca with WP.odt
was aggrieved by the said scheme finalised under the Act of
1947 and the scheme came into force under section 22. The
said scheme which had been finalised in accordance with
law and came into force and continued to be in force, could
not have been unsettled by initiating the proceedings for
variation under section 32 on the purported ground of
error, irregularity or informality after a lapse of about 15
years. Thus, the exercise of power by Settlement
Commissioner under section 32 for variation of the scheme
in the facts and circumstances of the present case is grossly
unjustified."
In that case, the powers were tried to be utilized after lapse of 15
years which were struck down by the Division Bench of this Court. Here,
it is used after lapse of 30 years. Still, that order dated 30.09.2010 has
been confirmed by the Hon'ble Revenue and Forest Minister by order
dated 26.08.2011. Both these orders are not sustainable. The concerned
authorities under the Fragmentation Act ought not to have exercised
their powers after lapse of 30 years and, therefore, the writ petition
deserves to be allowed.
17. The learned Advocate appearing for appellants in second appeal
has canvassed for exercise of powers of this Court under Section 103 of
the Code of Civil Procedure. In connection with the said submission,
note can be taken in respect of the ratio laid down in Municipal
Committee, Hoshiarpur Vs. Punjab State Electricity Board and others,
sa-86-2012 with ca with WP.odt
[(2010) 13 SCC 216], wherein it has been held thus :-
"25. Before powers under Section 103 C.P.C. can be exercised by
the High Court in a second appeal, the following conditions must
be fulfilled:
(i) Determination of an issue must be necessary for the
disposal of appeal;
(ii) The evidence on record must be sufficient to decide
such issue; and
(iii) (a) Such issue should not have been determined either
by the trial court, or by the appellate court or by both; or
(b) such issue should have been wrongly determined either
by trial court, or by the appellate court, or by both by
reason of a decision on substantial question of law.
If the above conditions are not fulfilled, the High Court cannot
exercise its powers under Section 103 CPC."
18. This Court when has come to the conclusion that writ petition
deserves to be allowed, that means orders passed in favour of appellants
in second appeal deserve to be set aside in the writ petition and the
application for correction in the consolidation scheme needs to be
dismissed, there is no question of using powers of this Court under
Section 103 of the Code of Civil Procedure.
19. For the aforesaid reasons, following order is passed :-
ORDER
I) The Second Appeal No.86 of 2012 stands dismissed.
sa-86-2012 with ca with WP.odt
II) Civil Application No.1333 of 2012 stands disposed of in
view of dismissal of second appeal.
III) Writ Petition No.8195 of 2011 stands allowed.
IV) The order passed by the Superintendent of Land Records,
Jalna on 30.09.2010 in Consolidation No./C.S.R./68/2001 and
the judgment and order dated 26.08.2011 passed by the Hon'ble
Revenue and Forest Minister, Mantralaya, Mumbai in Revision
Application No.REV. 39(A)11/Case No.188/L-1 stands set aside.
V) The application filed by the respondent No.5 for correction
of record in the consolidation scheme dated 28.09.2001 stands
rejected.
[SMT. VIBHA KANKANWADI, J.]
scm
