Tukaram Krishna Nanaware (Since deceased through his LR's) Krishnabai Tukaram Nanaware & Ors. v. Namdeo Mahadeo Nanaware & Anr.

and the Appellants herein who were Defendant Nos. 1 2 to 7 in the said suit were permanently restrained from disturbing the possession of the Respondents herein, who are the Plaintiff and the Defendant No.8 to the said suit.

The controversy in the above proceedings is as regards the area of Gat No.560 of village Ekambe in respect of which an injunction was sought by the Plaintiffs in the said Regular Civil Suit No.8 of 1990. The Plaintiff has placed his case on the certificate dated 9th April 1970 issued under section 24 of the Bombay Prevention of Fragmentations and Consolidation of Holdings Act,

1947. The Plaintiff has also based his case on the 7 X 12 extracts in respect of the said land in question. Wherein it is recorded that the area of the said Gat No.560 is 4 acre and 25 R.

It is the case of the Defendants that the Consolidation Scheme in the said village Ekambe was 3 implemented in the year 1961 and thereafter a modification has taken place in the year 1964 by which the area of the said Gat No.560 was reduced from 4 acres and 25 Guntha to 30R. It is further the case of Defendant Nos. 1 to 7 that mutation entry No.3428 was recorded in their name which has gone unchallenged by the Plaintiff. It was further the case of the Defendants that since the area of the said Gat No.560 was reduced to 30R, the relief by way of injunction as prayed for by the Plaintiffs in favour of himself and Defendant No.8 could not be granted. The Defendants have also raised a plea that the instant suit being Regular Civil Suit No.8 of 1990 was hit by the principles of res-judicata, in view of the earlier suit filed by the Plaintiff and Defendant No.8.

The parties went to trial, on the basis of the material that was before the Trial Court and principally on the ground that the Mutation Entry 4 No.3428 was not challenged by the Plaintiff, the Trial Court came to a conclusion that the area of the said Gat No.560 was reduced to 30R in the said Modified Consolidation Scheme. The Trial Court in the said suit also observed that the certificate issued in favour of the Plaintiff and Defendant No.8 by the Consolidation Officer dated 9th April, 1970 was an erroneous certificate. The Trial Court therefore dismissed the said suit.

Aggrieved by the dismissal of the said suit, by the Trial Court by its Judgment and order dated 25th January, 1993, the Plaintiff and the Defendant No.8 filed Regular Civil Appeal No.93 of

1993. The said Regular Civil Appeal was allowed by the Lower Appellate Court by Judgment and Order dated 23rd March, 2000 and resultantly the Regular Civil Suit No.8 of 1990 came to be decreed. The Lower Appellate Court came to a conclusion that the case of the Defendants that the area of Gat No.560 5 were reduced to 30R could not be accepted in the absence of the order dated 28th October, 1964 passed by the Settlement Commissioner, Pune. The Lower Appellate Court taking into consideration the entries in the record of rights in respect of the said Gat No.560 right from the year 1972 wherein the area of the said Gat number is mentioned as 1 hector and 87 R as also the certificate issued to the Plaintiff under section 24 of the said Act dated 9th April, 1970 came to a conclusion that the Plaintiff had proved that he is the owner of Gat No.560 and that its area was 1 hector and 87R equivalent to 4 acres and 25R. The Lower Appellate Court observed that once the Plaintiff having proved the same the onus had shifted on the Defendant Nos. 1 to 7 to prove that the area of the said Gat No.560 was reduced to 30R which burden they had failed to discharge. The Lower Appellate Court in the said circumstances recorded the said findings of fact and decreed the said suit. 6

The Appellant in the Second Appeal had filed a Civil Application being No.307 of 2001 for being permitted to produce, additional evidence which is in the form of the order passed by the Settlement Commissioner dated 28th October, 1964. The said Civil Application was allowed by an order passed today.

The learned counsel for the Appellant sought to contend relying on the said documents produced by way of additional evidence that the original Consolidation Scheme in respect of 23 Khatas of village Ekambe was modified by the said order dated 28th October, 1964 and that Gat No.560 is one of Khatas mentioned in the said order. The learned counsel further submitted that the said area of Gat No.560 was reduced to 30R from 4 acres and 25R as the original Plaintiff and the original Defendant No.8 were allotted 7 acres of land from 7 one of the Plaintiffs land in the said Modified Consolidation Scheme. The learned counsel also relied upon the extract from the register to buttress his submission that the area of the said Gat No.560 was reduced to 30R.

It is contended on behalf of the Respondents i.e. the original Plaintiff that even the said additional evidence if read, does not take the Defendants case any further. The learned counsel further submitted that the case of the Defendants that an area of 7 acres was taken them and handed over to the Plaintiff, does not find a place in the pleadings. The learned counsel drew my attention to the written statement filed on behalf of the Defendants wherein pleading to the said effect is conspicuously absent.

In my view, there is considerable merit in the submission of the learned counsel for the 8 Respondents. There is no material on record to indicate as to why there was a drastic change in the area of the said Gat No.560 from 4 acres and 25 Gunthas to 30 Guntha as is the case of the Plaintiff. In my view, merely relying upon the said order dated 29th October, 1964 whereby the Consolidation Scheme was modified is not enough. The Defendants should have proved by cogent evidence that infact the area of Gat No.560 was reduced. Significantly, the Defendants have not entered the witness box nor have lead the evidence of any officer connected with the Consolidation Scheme. The case of the Plaintiffs being handed over 7 acres is a case advance on behalf of the Defendants across the bar and as indicated above, there is no pleading to that effect.

The Lower Appellate Court therefore in my view has rightly come to a conclusion that the Defendants have failed to prove that the area of 9 the said Gat No.560 was reduced to 30R. The exercise of Appellate jurisdiction by the Lower Appellate Court in the facts and circumstances of the present case can be said to be justified.

In my view, the challenge raised in the Second Appeal, in view of the findings recorded by the Lower Appellate Court does not involve any substantial question of law.

The Appeal is, accordingly, dismissed.

In view of the dismissal of the Appeal, the Civil Application No.307 of 2001 does not survive and is disposed of as such. [R.M.SAVANT, J.] 10