KERABA BABA . v. VITHAL DATTARAM.

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2. The dispute relates to certification of Mutation Entry No. 757 recorded by the Village Talathi on 30-09-1982. The petitioner's case inter alia was that the respondent owns land Gat No. 10, admeasuring 8 acres 28 gunthas which is wrongly claimed by him to consist of 9 acres 32 gunthas. The petitioner alleges that he is owner of land Gat No. 9, admeasuring 4 hectares 39 Ares (10 acres 39 gunthas). The area of his Gat No. 9 was duly recognized during course of the Consolidation Scheme. The respondent filed a suit (R.C.S. No. 176/1980) for declaration of ownership, possession and injunction. He claimed that he is owner of land Gat No. 10 to the extent of 9 acres 38 gunthas. The suit was resisted by the petitioner. The civil Court decreed the suit holding that the respondent was owner of land Gat No. 9 to the extent of 9 acres 38 gunthas. It is pertinent to note that in the said suit jurisdiction of the civil Court was challenged on the ground that the Consolidation record cannot be rectified by the decree of the Court. However, the civil Court rejected such contention and decreed the suit of the respondent holding that the respondent is owner of land Gut No. 10,

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admeasuring 9 acres 38 gunthas, excluding 23 gunthas portion situated on eastern side.

3. The respondent initiated proceedings for certification of the mutation entry in accordance with the decree of the civil Court in suit bearing R.C.S. No. 176/1980 and, therefore, mutation entry No. 757 was recorded. The petitioner filed an objection application alleging that he and his brother by name Venkati were owners of land Gut No. 9 to the extent of half portion each. He contended that the competent consolidation officer recorded their names as owners of land Gut No. 9, admeasuring 4 hectares 39 Ares, situated at village Waghala and the change of area could not have been effected only due to declaratory decree of the Civil Court. The Tahsildar inquired into the objection application of the petitioner. The Tahsildar held that as per the consolidation record, the area of Gut No. 10 was only 3 hectares 44 Ares, which was less than shown in the decree of the civil Court in R.C.S. No. 176/1980. The Tahsildar directed the respondent to get the area of his land measured from the competent authority and to

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sue for possession if it was found less. The objection application of the petitioner was allowed. The contention of the petitioner was that the civil Court's decree could not have altered the consolidation scheme which is within exclusive jurisdiction of the competent authority under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The petitioner had filed suit (R.C.S. No. 381/1982), in the meanwhile, and it was decreed by the civil Court. The civil Court held that the petitioner and his brother owned land Gut No. 9, admeasuring 4 hectares 39 gunthas and the respondent was prohibited from interfering in their lawful possession. It appears that an appeal was carried by the respondent against the said decree. That was dismissed. The learned members of the Bar inform that the second appeal preferred by the respondent is pending before this Court.

4. The order rendered by the Tahsildar on 24-11-1984 whereby objection application of the petitioner was allowed, was challenged by the respondent vide RoR appeal No. 84/MAG/ROR/2. The learned Deputy

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Collector allowed the appeal holding that the Tahsildar ought not to have interfered with the civil Court's decree. The petitioner preferred further appeal before the Additional Collector in File No. 86/RB-Desk-I- Appeal-ROR-CR-3. The learned Additional Collector dismissed the appeal. The petitioner thereafter preferred revision application No. R.11 of 1989, which was dismissed by the Additional Commissioner, Aurangabad Division. Hence the petition.

5. Heard learned counsel for the parties.

6. Question involved in this petition is :

Whether the previous entries recorded at the time of preparation of the consolidation scheme could have been held ineffective merely because declaratory decree was rendered by the Civil Court in the suit for declaration and injunction (R.C.S. No. 176/1980) and that whether excess area had merged into the land Gut No. 10 as a result of such decree of the

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civil Court and, therefore, the mutation entry No. 757 could have been validly

certified/sanctioned by the competent revenue authority ?

7. The record shows that original Survey No. 112 of village Waghala was divided during implementation of the consolidation scheme. It appears that land Survey No. 112 was converted into three (3) blocks, bearing Gut No. 10 owned by the respondent, Gut No. 158 owned by one Digambar s/o Vithal and then Gut No. 9, which was consolidated alongwith other lands, and allotted to the petitioner. It is true that there are two (2) contrary decrees rendered by the civil Courts. The respondent's suit for declaration of ownership, possession and injunction was partly decreed excluding 23 gunthas land of old Gut No. 10. The petitioner's suit (R.C.S. No. 381/1982) also came to be decreed. That suit also was for declaration of ownership and injunction. Needless to say, there are contrary findings of the civil Court. However, it is pertinent to notice that in the subsequent suit (R.C.S. No. 381/1982),a specific issue

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raised by the Court was thus :

"What is the effect of the decision in RCS No. 176 of 1980 on the rights of the plaintiffs ?"

The learned civil judge held that it had no effect on the rights of the petitioner. Rightly or wrongly, the issue regarding immunity from the effect of the earlier decree in R.C.S. No. 176 of 1980 was held in favour of the petitioner.

8. The impugned certification of mutation entry No. 757, in fact, tantamounts to rectification of the consolidation scheme. Section 28 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 creates legal embargo on the powers of the civil Court to vary the scheme. This Court in

"Gulabrao Bhaurao Kakade since deceased by L.Rs. and others v. Nivrutti Krishna Bhilare and others" 2001 (4) Mh.L.J. 31, held that after 10 years, the consolidation scheme could not be altered. In "Mohammad Hanif Abdul Masjid Isane and others v. Juned Mohammad Jalal and

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others" 2005 (1) Mh.L.J. 233, a Single Bench of this Court held that unless the consolidation scheme is modified or amended under section 32 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, no alteration or modification can be ordered by the civil Court. It is held that the power to issue corrigendum is exclusively with the Settlement Commissioner.

9. In "Dattu Appa Patil since deceased by Lrs. Ananda Dattu Patil and others v. State of Maharashtra and others" 2007 (1) Mh.L.J. 393 and "Gulabrao Bhaurao Kakade since deceased by L.Rs. and others v. Nivrutti Krishna Bhilare and others" 2001 (4) Mh.L.J. 31,

Division Benches of this Court held that ordinarily, such power to modify the scheme will have to be exercised within period of three years after settlement of the scheme. It is held that variation after long many years, such as 27 years, was not proper.

10. Cumulative effect of the foregoing discussion

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is that though there was decree of the Civil Court in previous suit (R.C.S. No. 176/1980), yet, due to subsequent decree in R.C.S. No. 381/1982, the findings could not have been regarded as a valid ground for effecting change or modification in the consolidation scheme in order to recognize the respondent as lawful owner of more area than was shown in the consolidation record. It is nobody's case that the lands were measured after the directions of the Naib Tahsildar whereby the objection application of the petitioner was allowed. The learned Sub-Divisional Officer allowed the appeal of the respondent only because there was declaratory decree in favour of the respondent and the petitioner was restrained from disturbing his possession in respect of land Gut No. 10, which was shown to comprise of 9 acres 38 gunthas. The learned Sub- Divisional Officer, Nanded, Additional Collector and the revisional authority i.e. the Additional Commissioner failed to see that change in the consolidation record could not be effected by the decree of civil Court in view of Section 32 (1) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.

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Moreover, there was no issue framed in the suit (R.C.S. No. 176/1980) regarding illegality or impropriety of the scheme of consolidation. The three authorities mentioned above committed patent error while granting certification to the mutation entry No. 737 which impliedly amounts to modification in the consolidation scheme. It need not be reiterated that the powers to issue corrigendum is only with the Settlement Commissioner.

11. For the reasons aforestated, I am of the opinion that the impugned judgements are unsustainable being patently erroneous. Hence, the petition is allowed. The impugned judgements and orders of the Additional Commissioner, Additional Collector and the Sub-Divisional Officer are set aside. Rule made absolute accordingly. No costs.

[ V.R. KINGAONKAR ]

JUDGE

NPJ/wp1827.91

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