High Court
Legal Reasoning
{1} wp10534-18.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.10534 OF 2018WITHCIVIL APPLICATION NO. 4354 OF 2023Laxman Maroti Vibhute (Died) LRs & Others PETITIONERSVERSUSShivkumar Gangadhar Vibute and Others RESPONDENTS.......Mr. U. B. Bilolikar, Advocate for the PetitionersMr. Gaurav L. Deshpande, Advocate for Respondents No.1 to 5 ....... [CORAM : MANJUSHA DESHPANDE, J.] DATE : 28 th JANUARY, 2025 ORDER :1.The Petitioners assail order dated 20th July, 2018 passed bylearned Civil Judge, Junior Division, Dharmabad, District – Nandedbelow Exhibit-92 in Regular Civil Suit No. 28 of 2014.2.The Petitioners had filed application Exhibit-92 with aprayer to frame addition issue, which reads thus:“Whether the plaintiffs prove that the consolidation record prepared regarding Gut No. 130 of Chondi is incorrect?” 3.The application Exhibit-92 has been rejected by the TrialCourt by order dated 20th July, 2018, therefore, the Petitionersare before this Court challenging the said order. {2} wp10534-18.doc4.Facts leading to file Regular Civil Suit No. 28 of 2014, bythe present Petitioner, who are original plaintiffs, can besummarized as under :Common ancestor of Plaintiffs - Petitioners and DefendantsNo.1 to 5 and 9 to 16, who are respondents in this Petition, wasone Santu Jakoji Wani. He was owner of 110 Acre 39 guntha landin different survey numbers in village Chondi. It is the case of thePetitioners that though partition was effected amongst heirs ofSantu Jakoji Wani, but the lands were never measured.Respective sharers were cultivating and enjoying their ownshares, but no measurement of actual area in their possessionwas ever carried out. Since their ancestors, the Plaintiffs as wellas the Respondents - Defendants were enjoying the properties,which were in their possession. The suit land, which is part andparcel of old survey No. 50 was also in possession of the Plaintiffsand after the partition, they continued with possession asdescendants of original owner. It is further contended thatDefendants No.1 to 5 caused measurement of land Gut No. 130of Chondi on 25th October, 2013 and 26th October, 2013. Whenthe measurement was conducted, the Plaintiffs and Defendantsrealized that the Plaintiffs are in possession of the suit land,though it stands in the name of Defendants. In the measurementmap, the suit land is described as it stands in Gut No. 130 and is {3} wp10534-18.docin possession of owner of Gut No. 181. 5.According to the Petitioners, the suit land is part and parcelof old Survey No. 50 and the Petitioners are owners of Gut No.181. The Petitioners have executed sale deed in favour ofDefendants No. 6, 7 and 8. In the measurement, which isconducted at the behest of Defendants No.1 to 5, it is revealedthat the Petitioners are in possession of 2 Hectare 37 R land outof Gut No. 130. In the Pahani Patrak of 1954, Survey No. 46 and50 are shown as ad measuring 33 Acre 38 Guntha and 1 Acre 29Guuntha. Therefore, only after the measurement, it hastranspired that though the Petitioners are in possession of thesuit land, it is shown in the measurement map that the suit landbelongs to Gut No. 130 and is in possession of the owner of GutNo. 181.6. The names of the Petitioners should have been shown asowners of Gut No. 130 ad measuring 2 Hectare 36 R of villageChondi, but while implementing consolidation scheme, mistakehas been committed. It is the contention of the Petitioners thatthe Consolidation Officer, without visiting the spot, has preparedrecord and the Petitioners, being rustic villagers, were not awareabout the preparation of the record. Therefore, by mistakenames of Defendants No. 5, 4 and 1 are shown in the suit land {4} wp10534-18.docand by taking undue advantage of the wrong entries, thePetitioners are being tried to be dispossessed from the suit land.Therefore, due to the apprehension of dispossession, RegularCivil Suit No. 28 of 2014 has been filed seeking declaration ofownership and perpetual injunction against the Defendants. Inthe plaint itself, the Petitioners have made an avermentregarding partition between ancestors of Petitioners andDefendants and also about carelessness of the Revenue Officerswhile taking entries and the entries are made by theConsolidation Officer without visiting the spot, while preparingthe consolidation record.7.There is a categorical averment in the plaint that onlywhen the measurement was made by the Defendants, thePetitioners became aware about the actual possession of thePetitioners in gut No. 130 and the mistake committed duringconsolidation scheme by the Consolidation Officer, while enteringname of Defendants No.5, 4 and 1 in place of Petitioners asowners of 2 Hectare 36 R land in Gut No. 130 of village Chondi.8.After filing of the Suit, Defendants No.1 to 5 have appearedand filed their written statement denying all the contentions inthe plaint. After filing of the written statement by theDefendants, issues were framed by the Trial Court at Exhibit-90 {5} wp10534-18.docon 16th December, 2017. After framing of the issues, thePetitioners filed Application Exhibit-92 on 30th June, 2018 with aprayer to frame an additional issue regarding correctness ofpreparation of record during consolidation scheme in Gut No. 130of village Chondi. The Trial Court has passed an order onApplication Exhibit-92 on 20th July, 2018 by recording reasons forrejection of the application. It is observed by the Trial Court thatevery assertion or denial made by the party should not be anissue in the matter. Only material proposition, asserted or deniedshall be matter in issue. On the basis of nature of disputebetween the parties, the Court is supposed to decide theapplication. It is observed that the suit is for declaration ofownership and perpetual injunction and the proposed issue,which is requested to be framed, concerns with section 36 A ofthe Maharashtra Prevention of Fragmentation and Consolidationof Holdings Act, 1974 (to be referred to “Consolidation Act”) andthe record prepared by the authority under the Consolidation Act.Since section 36 A of the Consolidation Act bars jurisdiction ofthe Civil Court, the Court cannot frame issue, which is barred asper the Statute. Relying on Section 36 A of the Consolidation Act,the Trial Court has rejected the application Exhibit-92. Section 36A of the Consolidation Act reads thus - {6} wp10534-18.doc36A. [ Bar of jurisdiction. [Sections 36A, 36B and 36C were insertedby Bombay 61 of 1958, Section 3(23).] (1) No Civil Court or Mamlatdar's Court shall have jurisdiction tosettle, decide or deal with any question which is by or under this Actrequired to be settled, decided or dealt with by the State Governmentor any officer or authority.(2) No order of the State Government or any such officer or authoritymade under this Act shall be questioned in any Civil, Criminal orMamlatdar's Court.9.According to learned Advocate for the Petitioners, if in asuit, which is pending before Civil Court, issue regardingConsolidation Act arises, in such circumstances, the Civil Courtcan refer such issues to competent authority for determinationunder the Consolidation Act and after receiving decision of theconcerned authority on the issue, which is referred to thecompetent authority, the suit is decided. Learned Advocate forthe Petitioners relies on section 36 B of the Consolidation Act.According to him, case of the Petitioners is squarely covered bySection 36 B of the Consolidation Act. Section 36 B of theConsolidation Act reads thus, 36 B Suits involving issues required to be decided under this Act.(1) If any suit instituted in any Civil Court or Mamlatdar's Courtinvolves any issues which are required to be settled, decided or dealtwith by any authority competent to settle, decide or deal with suchissues under this Act (hereinafter referred to as the 'competentauthority') the Civil Court or Mamlatdar's Court shall stay the suitand refer such issues to such competent authority for determination.(2) On receipt of such reference from the Civil Court or Mamlatdar'sCourt, the competent authority shall deal with and decide such issues {7} wp10534-18.docin accordance with the provisions of this Act and shall communicateits decision to the Civil Court or Mamlatdar's Court and such Courtshall thereupon dispose of the suit in accordance with the procedureapplicable thereto.10,Per contra, learned Advocate for the Respondents hasvehemently argued and submitted that order passed by the TrialCourt is valid and a reasoned order. According to him,considering the bar to jurisdiction of the Civil Court as per theprovisions of the Consolidation Act, framing of issue is notpermissible. Hence, the Trial Court has passed an appropriateorder. According to him, challenge to the consolidation scheme isa belated challenge. Record discloses that only after intimationto the respective parties, Mutation Entries are recorded duringthe consolidation scheme. According to him, Petitioners verymuch had knowledge about the consolidation scheme. 11.It is his contention that Consolidation Act is acomprehensive Act, which takes care of each and everycontingency. Therefore, Application Exhibit-92 is notmaintainable. He submits that if at all the Petitioners intend tochallenge revenue entries, they can file appropriate proceedingsbefore appropriate authority, as provided under theConsolidation Act. According to him, all the averments made inthe plaint and written statement are not required to be convertedin to issues. There is no straitjacket formula for framing of issues. {8} wp10534-18.docTherefore, it is at the discretion of the Court to frame issues fromthe pleadings of the parties. 12.After hearing the learned Advocates for the respectiveparties and going through the record, it is apparent that thePetitioners are apprehending dispossession on account ofrevenue entry in the name of respondents in respect of the land,which is in their possession since long. It is their specificaverment in the plaint that mistake has occurred duringimplementation of the consolidation scheme. Though suchaverment is made in the plaint and it is denied by the defendantsin their written statement, no issue to that effect has beenframed by the Trial Court. Therefore, application Exhibit-92 wasfiled praying to frame the said issue. Trial Court, while decidingthe application Exhibit-92, has wrongly interpreted the scope ofsection 36A of the Consolidation Act.13.While doing so, the Trial Court has also failed to considerthe very next provision of the Consolidation Act i.e. section 36B,which provides that Civil Court shall frame issue aboutconsolidation scheme and refer it to the competent authority andthe Civil Court is required to stay the suit till the issue which is tobe determined by the competent authority is decided. Theobservations made by the Trial Court while rejecting the
Decision
{9} wp10534-18.docApplication Exhibit-92, are contrary to the provisions of section36B of the Consolidation Act. Hence, the said observations areerroneous and untenable. The only reason while rejecting theapplication Exhibit-92 being the bar under Section 36A of theConsolidation Act, the Trial Court has got confused andmisdirected itself while making the above observations, ignoringSection 36B of the Consolidation Act, which stipulates that insuch case the matter is required to be referred to the CompetentAuthority for decision under section 36B of the Consolidation Act.Hence, the impugned order passed by the Trial Court beingerroneous and passed without application of mind, deserves tobe quashed and set aside.14.In the result, Writ Petition is allowed. Impugned orderdated 20th July, 2018 passed by learned Civil Judge, JuniorDivision, Dharmabad, District – Nanded below Exhibit-92 inRegular Civil Suit No. 28 of 2014 is quashed and set aside.Application Exhibit-92 is allowed. In view of disposal of the WritPetition, Civil Application No. 4354 of 2023 is also disposed of. [ MANJUSHA DESHPANDE ] JUDGE drp/wp10534-18.doc