Vinayak Bhimashankar Sontakke ... vs Sunandabai Nivrutti Dhumal
2022 Latest Caselaw 4226 Bom

                                       1                      SA / 211 / 2022


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                      925 SECOND APPEAL NO.211 OF 2022
                       WITH CA/6313/2022 IN SA/211/2022

           VINAYAK BHIMASHANKAR SONTAKKE AND ANOTHER
                            VERSUS
                    SUNANDABAI NIVRUTTI DHUMAL

                                     ...
                Advocate for Appellants : Mr. Chandole S.V.
 Advocate for the respondent : Mr. R.R. Karpe h/f. Mr. Dashrath R. Dhumal
                                     ...

                                CORAM      : MANGESH S. PATIL, J.

                                DATE       : 21 APRIL 2022

PC :

The original defendants are challenging the judgment and

decree passed by the lower appellate court reversing the judgment of

the trial court dismissing the respondent - plaintiff's suit for perpetual

injunction.

2. The respondent claims to have purchased the suit property

admeasuring 7 Acre by a registered sale deed executed by appellant's

father- Bhimashankar on 13-08-1974. She averred that during

implementation of the scheme of the Bombay Prevention of

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

Consolidation Act") her name was not recorded to the fullest extent of

the suit property i.e. 7 Acres but she has been in peaceful possession

over the entire suit property since the date of the sale deed and the

appellants are obstructing her possession.

2 SA / 211 / 2022

3. I have heard the learned advocates of both the sides.

4. Though there has been some dispute in respect of the sale

deed, in paragraph no. 2 of the written statement, the appellants

specifically admitted its execution.

5. However, admittedly, while implementing the scheme

under the Consolidation Act, only a portion admeasuring 2 Hectare 10

Are was recorded in respondent's name.

6. In the teeth of such a scheme finalized under that Act, and

in the absence of any further modification, whether the respondent

would be entitled to perpetual injunction to the extent of 7 Acres, is a

substantial question.

7. The second appeal is admitted on the following

substantial question of law:-

I) When the jurisdiction of the civil court to embark upon the

correctness or otherwise of the scheme finalized under the

Bombay Prevention of Fragmentation and Consolidation of

Holdings Act, 1947 is ousted under provisions of that Act,

whether the respondent is entitled to claim perpetual

injunction circuitously to the extent of 7 Acre ?

8. Mr. Karpe h/f. Dhumal for the respondent waives notice.

3 SA / 211 / 2022

9. In view of the nature of the dispute, the parties shall

maintain status-quo in respect of the suit property, as is obtaining today

till the decision of the second appeal.

10. Civil application no. 6313 of 2022 is disposed of.

[ MANGESH S. PATIL ] JUDGE arp/