Ashok Yeshwant Dhumal deceased by heirs and legal representatives vs Shankar Maruti Dhumal & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(Bom) 77

IN THE HIGH COURT OF BOMBAY
S.A. Bobde, J.
Ashok Yeshwant Dhumal deceased by heirs and legal representatives....Appellants.
Versus
Shankar Maruti Dhumal another.... Respondents.
Second Appeal No. 279 of 1990, decided on 1-2-2001.
Advocates appeared :
R.A. Thorat with Ms. J.P. Majumdar, for the appellants.
Ms. Asha Bhambwani, for respondent No. 1.

Headnote:Sections 36-A and 21(3)-Suit for possession of consolidated holdings-Both parties in possession of original holding do not want to get parted away of possession of other side-Lower appellate Court denying taking up case on ground-In consolidation matters, civil Court has lack of proper jurisdiction-Held-Under the Act, power to put owners in possession after consolidation is exclusively conferred on consolidation officer under Section 21(3) of Act-Section 36-A bars jurisdiction of civil Court.-It is clear from the section that the Consolidation Officer puts the owners in possession from the commencing of the agricultural year next following the date of publication of the notification in the Official Gazette. It is not disputed before me that it is being under sub-section (1) published long ago having regard to the facts of the case. Since the appellants and the respondents are both allottees under the Consolidation Scheme, the question as to who should be in possession of any portion of land which is covered by the Consolidation Scheme is a question, that can only be decided by the Consolidation Officer under Section 21(3) of the Act.
It is settled law that the question of jurisdiction of a Civil Court must not be readily inferred unless it is expressly excluded or must be taken to be so excluded by necessary implication. Having regard to the scheme of the present Act, the relevant provisions of which have been reproduced above, the jurisdiction of Civil Courts is barred by Section 36-Aof the Act where the question is one relating to putting a owner in possession of the holding to which he is entitled under the scheme.

JUDGMENT - S.A. BOBDE, J.:---This second appeal is preferred by the original plaintiffs whose suit for possession of the suit and from the respondent No. 1 has been dismissed by the learned Second Additional District Judge, Satara on the ground that the Civil Courts have no jurisdiction to entertain the dispute in view of the bar contained in section 36-A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. Earlier, the trial Court had decreed the suit.

2. The facts in brief are as follows :

Consolidation proceedings were initiated in village Sonake, Taluka Koregaon under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, hereinafter referred to as 'the Act'. Two blocks known as Gats were formed by consolidating the lands of the appellants viz. Shankar, the respondent No. 2, Sarjerao Laxman Dhumal and some other persons. It is an admitted position that the two blocks bearing Gat No. 1428 and 1429 were formed as follows :

(A) Block No. 1428 was formed from Survey No. 199/6-B which originally belonged to the respondent No. 2 Sarjerao Dhumal and Survey No. 199/6-C which originally belonged to the appellant Yeshwant Dhumal. It is undisputed that respondent No. 1 Shankar Dhumal has been conferred with half ownership of the total area of this Block No. 1428, the ownership of the other half being conferred on Yeshwant Dhumal, the father of the appellants, since deceased.

(B) Block No. 1429 was formed from Survey No. 199/4-B plus 5. This is Property No. 1-A in the plaint, originally belonging to the respondent No. 2 plus some portion of Survey No. 199/6-E (Property No. 1-C in the plaint).

3. The appellants filed the present suit claiming that they had given possession of land Survey No. 199/4-B plus 5 to the respondent No. 1 only for a period of three years from 1972 to 1975 in consideration for a loan taken from the respondent No. 1. This land is described in the plaint as Property No. 1-A. According to the plaintiff, after the expiry of the period of three years the possession of the respondent No. 1 became unauthorised and unlawful. He, therefore, sought possession of these lands. This suit was filed in the year 1979.

4. Consolidation proceedings were initiated and resulted in the formation of the two blocks; as stated earlier. It is undisputed that certificates under section 24 of the Consolidation Act have been issued to the respective parties in 1979. Section 24 of the Act reads as follows :

"24(1) The Consolidation Officer shall grant to every owner to whom a holding has been allotted in pursuance of a scheme of consolidation and to every person to whom a right is allotted under sub-section (6) of section 21, a certificate in the prescribed form duly registered under the Indian Registration Act, 1908, to the effect that the holding has been transferred to him in pursuance of the scheme.

(2) Notwithstanding anything contained in any law for the time being in force no stamp or registration fee shall be payable in respect of such certificate."

These certificates under that section are certificates of rights and are granted to every owner to whom a holding has been allotted in pursuance of a scheme of consolidation. There is no dispute that all the parties to this appeal have been granted the certificates. The dispute is however as to possession.

5. The facts about possession are as follows :

The respondent No. 1, who has been granted certificate of ownership in Gat No. 1428 has not handed over possession of Survey No. 199/4-B plus 5 which now forms part of the Block No. 1429. This survey number originally belonged to the appellants and they claim its possession from the respondent No. 1, who according to them has wrongfully retained possession. This Plot No. 1429 has been allotted to the respondent No. 2 Sarjerao. Since the respondent No. 1 has not handed over possession of land Survey No. 199/4-B, the respondent No. 2 has been deprived of it. As a result, the respondent No. 2, w

Click Here to Read the rest of this document