JUDGMENT - KANADE V.M., J.:—Petitioners are the original defendants and respondent No. 1 is the original plaintiff. Respondent Nos. 2 and 3 are the original defendant No. 5. For the sake of convenience parties shall be referred to as plaintiff and defendants.

FACTS :

2. Plaintiff, respondent No. 1 herein, instituted a suit against the defendants and the Pune Municipal Corporation seeking a declaration that the amalgamation of two plots bearing C.T.S. No. 1357 and 1358 by the defendants, petitioners herein, and the respondents 2 and 3 is illegal, null and void and he further prayed that the building permission granted on the basis of building plan of the amalgamated property be revoked. Reply and written statement was filed by the defendants. An application vide Exhibit-20 was filed under Order VII, Rule 11 in which the defendants, petitioners herein, prayed for rejection of the plaint. An objection was raised that the Civil Court has no jurisdiction to decide the said dispute in view of the provisions of section 149 of the Maharashtra Regional and Town Planning Act, 1966 ( For short M.R.T.P. Act, 1966). A reply was filed by the plaintiff and the trial Court came to the conclusion that section 149 does not expressly oust the jurisdiction of the Civil Court and, therefore, held that the suit was maintainable. The original defendant Nos. 1 to 4 had filed this Civil Revision Application challenging the said order passed by the Civil Judge Junior Division.

ARGUMENTS :

3. The learned Counsel appearing on behalf of defendant Nos. 1 to 4, petitioners herein, submitted that by virtue of the provisions of section 149, the Civil Courts jurisdiction is expressly barred. He relied upon the judgment of the Apex Court in the case of (Dhulabhai v. State of Madhya Pradesh, another)1, reported in A.I.R. 1969 S.C. 78. He also relied upon the judgment of this Court in the case of (Sujala Yeshwant Nitsure others v. Municipal Corporation of City of Pune others)2, reported in 1996(2) Bom.C.R. 503. He submitted that the plaintiff had, in fact, given irrevocable Power of Attorney to the defendants and had also executed agreement in which it was expressly provided that the defendants should amalgamate two plots. He submitted that in the teeth of the said consent given by the plaintiff, he had no right to file a suit in the Civil Court and he should prefer an appeal against the permission which was granted for amalgamation of the said property before the authorities as provided under the M.R.T.P. Act, 1966.

4. The learned Counsel appearing on behalf of the plaintiff - respondent No. 1 has submitted that the trial Court had rightly held that the jurisdiction of the Civil Court is not expressly barred. He submitted that the question whether consent was given by the plaintiff to the defendants to amalgamate the properties was a question of fact which Civil Court alone could decide and it was a matter which depended on the contract which was executed between the parties as also on the terms and conditions of the Power of Attorney which was executed by the plaintiff in favour of the defendants. He further relied on Division Bench judgment of this Court in the case of (Raja Bahadur Motilal another v. State of Maharashtra others)3, reported in 2003(1) Bom.C.R. 251. He submitted that the Division Bench of this Court had held that the bar spelt out by section 149 was very limited. He submitted that the Civil suit was maintainable.

FINDINGS:

5. I have heard both the Counsel appearing on behalf of plaintiff and defendants at length. In the present case, the dispute between the parties is as to whether any permission was granted by the plaintiff to the defendants for the purpose of amalgamation of two plots or not and the plaintiffs specific case is that no such permission was given to the defendants either in the Development Agreement or in the Power of Attorney which was executed in their favour. The question which falls for consideration is as to whether

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