Civil Courts retain jurisdiction over ownership disputes despite statutory provisions barring such jurisdiction in consolidation schemes unless expressly excluded.

JUDGMENT :

ARUN R. PEDNEKER, J.

1. Rule. Rule made returnable. With consent of the parties, heard finally.

2. By the present petition, the petitioners challenge the order dated 13/08/2012, passed by the Joint Civil Judge, Senior Division, Nilanga, whereby the Court was pleased to decide the preliminary issue relating to the jurisdiction of the Civil Court to entertain the suit and held that the Civil Court has no jurisdiction to entertain the suit and returned the plaint for presentation before proper forum, and also the order dated 19/09/2017 was passed by the District Judge-1, Nilanga, in Misc. Civil Appeal No.25/2012 whereby the order of the Trial Court dated 13/08/2012 was upheld by dismissing the appeal primarily holding that the suit amounts to challenge to the consolidation and fragmentation scheme itself which the plaintiffs cannot do so by filing a civil suit.

3. The question of law that arises for determination before this Court in the present writ petition is as under : -

“Whether the bar under Section 36(A) read with Section 36 (B) of the Prevention of Fragmentation and Consolidation Holdings Act, 1947 is applicable to the suit filed by the plaintiffs/ petitioners ?”

4. For the above purpose, the brief facts as stated in the plaint are necessary to be considered : -

The plaintiffs have filed the Regular Civil Suit No.175/2011 for declaration of ownership and perpetual injunction in respect of suit property at Survey No.52/A which is converted into land Gut Nos.172 and 146 admeasuring 9 Acres 9 Gunthas being the ancestral property of the petitioners. It is contended in the plaint that the plaintiff Shankar Shinde is the only successor and possessor of the suit property. The defendant No.1 Prabat has his ancestral land in Survey No.66 situated on the Westerns side of the suit land. It is further contended that on the Eastern side of the suit property, there was land of Mr. Yadav Shinde. On 29/05/1974 said Yadav Shinde sold his 3 Acres 5 Gunthas land in Survey No.52/D to defendant No.1. In the said sale deed, the boundaries are wrongly mentioned and the mistake is not rectified by the defendant No.1. Thereafter, again the defendant No.1 purchased land at Survey No.52/D admeasuring 5 Acres 32 Gunthas from Yadav Shinde and that the defendant No.1 has only these the two sale deeds as regards his ownership and possession to the extent of Survey No.52/D. It is further the case of the petitioner that Survey No.52/A is absolute property of Venkoba Pandoba shinde and the defendant No.1 purchased entire land of Yadav Shinde.

5. It is further the case of the plaintiff that the Fragmentation Officer, without visiting Survey No.52 in collusion with defendants No.1 to 4, prepared false record to the extent of 5 A 84 R and wrongly shown small portion in the name of plaintiffs qua the suit property. The defendants are not concern with the suit property, however they are denying the ownership of the plaintiff and trying to dispossess the plaintiff from the suit property. There were earlier two suits also filed by the plaintiffs against the defendants which were withdrawn with permission to file fresh suit and accordingly the present suit is filed. The prayer in the civil suit are as under : -

“A) It be declare that, the plaintiff is exclusive owner of suit property more particular describe in para no.1 of the plaint.

B) It be declare that, boundaries of west shown in the sale deed No.2770/74 as executed in favour of deft. No.1 is null and void and not binding on plaintiff.

C) Defendants may be permanently restrained for not to interfere or obstruct b y any mode in peaceful and legal possession of pl