Imamali Nyajali Saiyyad And ... vs Hemlata Suresh Borole
2022 Latest Caselaw 157 Bom

                                       1                  SA / 110 / 2020


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                    SECOND APPEAL NO. 110 OF 2020
                                 WITH
            CIVIL APPLICATION NO. 6171 OF 2021 IN SA/110/2020

1. Imamali Nyajali Saiyyad
   Age : 51 years, Occupation : Labour,
   R/o. KGN Colony, Chopda,
   District Jalgaon

2. Subhanali Nyajali Saiyyad
   Age : 43 years, Occupation : Labour,
   R/o. Paldhi, Tq Dharangaon, Dist. Jalgaon

3. Salamabi Sk. Mohiddin Saiyyad
   Age : 49 years, Occupation : Household,
   R/o. Shirapur District Dhule

4. Halimabai Sk. Nasir Saiyyad
   Age : 47 years, Occupation : Household,
   R/o. Mustapha Colony, Chopda,
   District Jlagaon
   Through their power of Attorney
   Appellant no. 2.                                  .. Appellants/
                                                 (Original Plaintiffs/LRs)

            Versus

Sau Hemlata Suresh Borole
Age : 44 years, Occu:- Agriculture
R/o : Pankaj Nagar, Chopda,
Tq. Chopda District - Jalgaon                        .. Respondents
                                                   (Original Defendant)

                                        ...
Mr. Ameet R. Vaidya, Advocate for appellants
Mr. V.D. Sapkal, Sr. Advocate i/b. Mr. S.R. Sapkal and Mr. P.S. Gaikwad,
Advocate for respondent
                                        ...

                                  CORAM : MANGESH S. PATIL, J.

                                  DATE     : 5 JANUARY 2022

ORAL ORDER :

The unsuccessful legal representatives of original plaintiff

are impugning the concurrent findings of the two Courts below, whereby

2 SA / 110 / 2020

the suit seeking a declaration of title to the suit property being a portion

admeasuring 2 Hectare 55 Are and perpetual injunction restraining the

respondents - defendants from obstructing their peaceful possession

over it, has been dismissed and the decree has been confirmed.

2. Needless to state that in view of such concurrent findings,

the scope for this Court to cause interference in exercise of the powers

under section 100 of the Code of Civil Procedure, is limited. Not only a

pure question of law but there has to be a substantial question of law

to enable this Court to cause interference in the concurrent findings of

the facts or else it is demonstratable that such findings are based on no

evidence and are perverse.

3. Bearing in mind the above proposition, if one examines the

matter, the appellants, in substance are agitating that though they are

the owners of an erstwhile land survey no. 474 admeasuring 2 Hectare

55 Are, it was erroneously recorded as 1 Hectare 55 Are while

implementing the scheme under the Maharashtra Prevention of

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

Consolidation Act"). After which it was allotted Gat no. 924. They had

got the land admeasuring 1 Hectare 53 Are converted to non-agricultural

use and still the remaining portion admeasuring 1 Hectare 2 Are

continued to be in their possession.

4. The learned Advocate Mr. Vaidya for the appellants would

submit that ex facie, going by the record of the consolidation scheme, it

3 SA / 110 / 2020

was apparent that there was an error inasmuch as a considerably less

portion was shown to be allotted to the appellants. Realizing the fact,

they have also approached the Settlement Commissioner during the

pendency of the suit, as is pointed out by the appellate Court in the

judgment under challenge. He would, therefore, submit that the record

of the scheme was available for the trial Court as also the appellate

Court to be seen showing such error. Even the appellate Court,

prima facie accepted the evidence of the appellants' witnesses, showing

their possession over 1 Hectare 2 Are portion, if not the declaration,

atleast their case for perpetual injunction could have been considered.

Both the Courts below have grossly erred in not appreciating the facts

and circumstances while non-suiting the appellants.

5. The learned Advocate Mr. Vaidya would further point out

that when a witness summons was issued to the concerned

Superintendent of Land Records Office to bring on record the

measurement maps, pursuant to the correction carried out in the

scheme under the Consolidation Act in the year 1992, he had replied by

his letter dated 07-10-2013 at Exhibit 127 that it was advisable to

undertake a fresh measurement. It is in the light of such stand of the

Office of the Surveyor, initiative could have been taken by the Courts

below to atleast direct fresh measurement which would have sorted out

the dispute between the parties. Since the Courts have failed to

exercise such jurisdiction to consider all these aspects, the substantial

4 SA / 110 / 2020

question of law does arise and needs to be examined and answered by

this Court.

6. The learned Senior Advocate Mr. Sapkal for the

respondents submits that the appellants have chosen a wrong forum

and erroneous remedy. The crux of the dispute, even according to

them, is the error committed while implementing the scheme under the

Consolidation Act. Both the Courts below have rightly appreciated these

facts and circumstances. In view of the provisions of Section 36A of the

Consolidation Act, the jurisdiction of the civil Court is expressly barred to

go into and examine the scheme finalized under that Act. Perhaps

realizing the error, even the appellants have now approached and

preferred a proceeding before the Settlement Commissioner under the

Consolidation Act, for correction of the record and the proceeding is

pending.

7. He would, therefore, submit that so long as the scheme

under the Consolidation Act is not re-visited and modified, there would

be finality in view of the provisions of section 36B of the Act. He would

submit that both the Courts below have rightly appreciated the matter in

controversy and have concurrently non-suited the appellants. The view

taken by both the Courts, is a plausible view and cannot be interferred

with by this Court in exercise of the powers under section 100 of the

Code of Civil Procedure. No substantial question of law arise and the

appeal be dismissed.

5 SA / 110 / 2020

8. I have carefully considered the rival submissions and

perused the papers including the judgments of the two Courts below.

The crux of the matter, as can be appreciated from the facts and

circumstances seems to be that though appellants claim to be the

owners of the erstwhile land survey no. 474, totally admeasuring 2

Hectare and 55 Are during implementation of the scheme finalized

under the Consolidation Act, its extent has been shown as 1 Hectare 55

Are. If this is so, when the appellants are claiming a declaration as to

their title to the total land admeasuring 2 Hectare 55 Are, they certainly

could not have been granted the relief, right in the teeth of the

Consolidation record. The view and conclusions of the two Courts

below, holding them not to be entitled to the declaration is, indeed,

unsustainable. They have rightly appreciated the matter in dispute and

have come to a reasonable conclusion on the basis of the record of the

scheme under the Consolidation Act.

9. As can be appreciated, perhaps realizing the fact that the

appellants will have to first establish and get the scheme corrected,

seems to have approached the Settlement Commissioner, by preferring

an appropriate proceeding under the Consolidation Act. The fact

remains that so long as the scheme is not re-visited, no declaration, as

is being claimed, can be granted.

10. Needless to state that if at all the scheme is revisited and

some correction is made in a proceeding under the Consolidation Act,

the appellants would certainly be entitled to reap the benefit.

6 SA / 110 / 2020

11. For the time being, when the appellants are seeking to

indirectly question the scheme finalized under the Consolidation Act,

corrected subsequently in the year 1992, certainly the jurisdiction of the

civil Court is clearly barred under section 36A, albeit, the trial Court has

erroneously referred to a provision under the Maharashtra Land

Revenue Code. The appellants are seeking to invoke the jurisdiction of

the civil Court and to undertake a scrutiny, touching the implementation

of the scheme under the Consolidation Act. This cannot be done legally

in the light of the provision of Section 36A of the Consolidation Act,

though, the Courts below have not specifically referred to this provision.

12. The upshot of the above discussion, no substantial question

of law arises when the Courts below have taken a plausible view of the

facts and circumstances of the case.

13. The Second Appeal is dismissed. Pending civil application

is disposed of.

[ MANGESH S. PATIL, J. ]

arp/