ORAL JUDGMENT:

1. Heard the learned Counsel appearing on behalf of the appellant and the learned Counsel appearing on behalf of 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 Prevention 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 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 coowner of the said property, no order of injunction could be 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 However, the said appeal was allowed to be withdrawn with liberty to file fresh suit.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 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 1993 Mh.L.J. 1291. 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 Plai