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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.60 OF 2007
Shri Namdeo Bhau Chavan )
Age: 76, Occ: Agriculturist )
R/at: Sidhewadi, Tal. Miraj, )
Dist: Sangli ) .... Appellant.
V/s
1 Smt. Shantabai Kundlika Chavan )
Age: 55, Agriculturist
ig )
Occ:Household )
)
2 Shri Mahadeo Vishnu Chavan )
Age : 45, Occ: Agriculturist )
)
3 Shri Sahadeo Vishnu Chavan )
Age : 45, Occ: Service )
)
4 Yahdeo Vishnu Chavan )
Age: 42, Occ: Service, All R/o. )
Sidhewadi, Tal: Miraj. )
Dist : Sangli. ) .... Respondents.
Ms. A.R.S. Baxi for the appellant.
Mr. S.K. Chinchlikar for Respondent No.1.
CORAM: V. M. KANADE, J.
DATE : 29TH APRIL, 2011
ORAL JUDGMENT:
1. Heard the learned Counsel appearing on behalf of the
appellant and the learned Counsel appearing on behalf of
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Respondent No.1.
2. Following two substantial questions of law were framed
at the time of admission of the appeal:-
“1 Whether the decree passed by
courts below is sustainable u/s 36A of
Preventionig of Fragmentation Act,
1947?”
“2 Whether the courts below were
correct in issuing injunction against
Appellant who is co-owner of Gat No.
347?”
3. Appellant herein is the original Defendant and
Respondent No.1 is the original Plaintiff. For the sake of
convenience, parties shall be referred to as “Plaintiff” and
“Defendant”.
4. Plaintiff filed a suit in the Civil Court for an order of
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injunction restraining the Defendant from interfering with
her possession. Trial Court decreed the suit and injunction
was also granted in favour of the Plaintiff, restraining the
Defendant from interfering with her possession. Against this
judgment and decree, Defendant preferred an appeal before
the lower appellate court. The order passed by the trial
court was not stayed during pendency of appeal. Appeal
was finally dismissed.
5. The learned Counsel appearing on behalf of the
appellant has strenuously urged that the appellant had
purchased half portion of Gat No.347 and, therefore, he was
the owner to the extent of half portion of the said land and
that in the consolidation scheme an order was passed
initially in favour of the appellant herein. It is submitted that
orders passed by the Consolidation Officer in the scheme
cannot be interfered with in a suit and the effect of granting
order of injunction amounted to interference with the order
passed by the Consolidation Officer. Secondly, it is
submitted that since the Defendant, appellant herein was co-
owner of the said property, no order of injunction could be
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passed in favour of the Plaintiff. The learned Counsel has
invited my attention to the provisions of section 36A and
also the judgment and order of the trial court and the lower
appellate court. It is submitted that both the courts below
have lost sight of the fact that by virtue of Sale Deed,
appellant was owner to the extent of 50% and he was also in
possession of the suit property. It is further submitted that,
initially, suit was filed by the Defendant and the said suit
was dismissed by the Trial Court and against the said
judgment and order Defendant preferred an appeal.
However, the said appeal was allowed to be withdrawn with
liberty to file fresh suit. It is submitted that no fresh suit was
filed. However, in view of the withdrawal of the appeal, the
finding recorded by the trial court also stood withdrawn. It is
submitted that, both, the trial court and the lower appellate
court had erred in holding that the said finding recorded by
the trial court had attained finality.
6 On the other hand, the learned Counsel appearing on
behalf of Plaintiff submitted that provisions of section 36A
would not create a bar for filing a suit where reliefs are not
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in the nature of challenge to the order passed in the
consolidation proceedings. In support of the said
submission, he relied upon the judgment of the learned
Single Judge of this Court in Prabhakar Kushaba Hagwane
and others vs. Yashwant Bhau Hagwane since deceased by
Lrs. Ganpat Yashwant Hagwane 1. He further submitted that,
therefore, the suit for injunction simpliciter filed against the
Defendant was maintainable and both the courts below,
therefore, had accordingly held that the suit was
maintainable. So far as the second submission of the
learned counsel appearing on behalf of the
Defendant/Appellant herein is concerned, he submitted that
the specific case of the Plaintiff was that she was owner of
the specific portion of the land and, therefore, there was no
question of the Defendant being co-owner of the said land.
7. I have given my anxious consideration to the
submissions made by the learned Counsel appearing on
behalf of the Plaintiff and Defendant.
1 1993 Mh.L.J. 1291
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8. Before considering the rival submissions, it will be
relevant to consider the provisions of section 36A of the said
Act which reads as under:-
"36A (1) No Civil Court or
Mamlatdar's Court shall have
jurisdiction to settle, decide or deal
with any question which is by or
under this Act required to be settled,
decided or dealt with by the State
Government or any officer or
authority.
(2) No order of the State
Government or any such officer or
authority made under this Act shall
be questioned in any Civil, Criminal
or Mamlatdar’s Court.”
9. A plain reading of the aforesaid provision clearly
reveals that Civil Court is precluded from deciding any
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question which is required to be decided by the State
Government or any officer or authority. As a natural
corollary, the jurisdiction of the Civil Court is ousted
expressly in respect of the matters which are decided by the
State Government or any Officer or authority under this Act.
A preamble to this Act reads as under:-
“An Act to provide for the prevention
of fragmentation of agricultural
holdings and for their consolidation.
WHEREAS it is expedient to prevent
the fragmentation of agricultural
holdings and to provide for the
consolidation of agricultural holdings
for the purpose of the better
cultivation thereof; It is hereby
enacted as follows:-”
The purpose behind introducing this Act was, therefore, to
prevent the fragmentation and for consolidation of
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agricultural holding. The Act lays down the procedure for
consolidation and also the powers of consolidation officer
have been enumerated in the Act. The Act also lays down
the effect of consolidation proceedings and consolidation
holdings. Therefore, any order passed by the State
Government or any Officer in respect of consolidation of
holdings or redistribution of holdings cannot be challenged
before the Civil Court or Mamlatdar’s Court. It is a settled
position in law that jurisdiction of civil court is either
expressly or impliedly excluded if the provision is so made
in the special Act to that effect and not otherwise.
10. In the present case, section 36A excludes the
jurisdiction of the civil court only to the extent of decisions
which are taken by the State Government or Officers
appointed by it for implementing the provisions of this Act.
Therefore, the suit for simpliciter injunction restraining the
Defendant from obstructing possession is not specifically
barred by the said provisions of section 36A. In my view,
ratio of the judgment in Prabhakar Kushaba Hagwane and
others vs. Yashwant Bhau Hagwane since deceased by Lrs.
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Ganpat Yashwant Hagwane 1 would squarely apply to the
facts of the present case. The learned Single Judge of this
Court in the said judgment has observed in para 7 as under:-
“7. Had Civil Court jurisdiction to try this
suit in view of Section 36A is the second
question of law, raised before me.
Section 36A mentions that no Civil Court
or Mamlatdar’s Court has jurisdiction to
settle, decide or deal with any question
which is by or under this Act required to
be settled, decided or dealt with by the
State Government or any officer or
authority. Sub-section (2) of that section
mentions that no order of the State
Government or any such officer or
authority made under the Act shall be
questioned in any Civil, Criminal or
Mamlatdar’s Court. Now, the Plaintiff had
filed this suit on the basis that he has
1 1993 Mh.L.J. 1291
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been illegally dispossessed of the
property subsequent to his acquisition of
the title under the Act. The Defendants
have disputed this fact. Quite clearly the
dispute of this nature would fall within the
jurisdiction of the ordinary civil Court. No
provision of the Act is brought to my
notice under which it could be said that
the controversy, like this, is required to be
settled, decided or dealt with under the
Act either by the State Government or
any officer or authority. Under the
circumstances, the submission that the
Civil Court had no jurisdiction to try the
suit, is without any merit.”
11. The other submissions made by the learned Counsel
appearing on behalf of the appellant are on factual findings
which are arrived at by the lower Courts and this Court while
exercising its jurisdiction under section 100 of the Civil
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Procedure Code cannot interfere with the said findings.
Further, the contention of the learned counsel appearing on
behalf of the appellant/original Defendant that the order was
passed by the Consolidation Officer in favour of the
appellant also cannot be accepted since it is rightly pointed
out by the learned Counsel appearing on behalf of
Respondent No.1/Plaintiff that the said order was set aside
and the Writ Petition No.4924/1993 filed by the appellant
herein was also dismissed by this Court by judgment dated
21/03/2011. Hence, there is no merit in the submissions
made by the learned Counsel appearing on behalf of the
appellant.
12. In my view, therefore, the suit which was filed by the
Plaintiff in the Civil Court for injunction was maintainable.
The first question of law framed by this Court, therefore, is
answered in the affirmative. So far as the second question
of law is concerned, both the Courts below have come to the
conclusion that the Plaintiff claimed to be the owner of a
specific portion in Gat No.347 and since there are concurrent
findings of both the Courts below there is no question of
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Defendant being declared to be the co-owner in respect of
the property. The second question therefore is answered in
the affirmative.
13 Second Appeal is accordingly dismissed.
(V.M. KANADE, J.)
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