Bombay High Court
Prabhakar Kushaba Hagwane And Ors. vs Yashwant Bhau Hagwane Since Deed By His ... on 4 August, 1993
Equivalent citations: 1994(1)BOMCR368, (1993)95BOMLR571
JUDGMENT V.A. Mohta, J.
1. A point of some interest and importance pertaining to sections 24 and 36-A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 ("the Act") falls for consideration in this Second Appeal.
2. The undisputed factual background against which the question falls for determination is this. A scheme for consolidation of holdings as contemplated by Chapter III of the Act, was framed for village Ghorwad, Taluka Sinnar, District-Nasik. As per the procedure, draft scheme was prepared, objections were invited and thereafter the scheme was prepared under section 20. Notification about enforcement of schme as contemplated under section 21 was also published by the Settlement Commissioner in the Official Gazette. According to Original Plaintiff Yashwant, he entered into possession of certain holdings allotted to him in the scheme in the year 1965. So also Original Defendants entered into possession of the holdings allotted to them. The Consolidation Officer had issued a certificate in the prescribed form to the effect that the holdings have been transferred to the plaintiff in pursuance of the scheme and thereupon the Consolidation Officer had prepared a new record of rights in respect of the holdings so transferred and as per record of rights, the properties in question stand in the name of the plaintiff. The defendants thereafter illegally dispossessed the plaintiff and hence he filed a suit for getting back the possession of those lands. The defendants resisted the suit on the ground that the plaintiff never secured possession of the holdings in question and as a result the suit was not maintainable. The suit was not maintainable also because no certificate as contemplated by section 24 of the Act, has been issued in favour of the plaintiff, and without that certificate, title did not pass.
3. No certificate has been produced on record. The plaintiff's explanation is that it is misplaced. Record of rights entries indicating the ownership and possession of the plaintiff are placed on the record. The trial Court came to the conclusion that the plaintiff had failed to prove that the possession of the holdings was, in fact, delivered to him and hence he dismissed the suit. The Appellate Court on the basis of several circumstances including the entries in the record of rights and the communication between the plaintiff and the Consolidation Officer about the delivery of possession of the property to the plaintiff, came to the conclusion that some time in 1965 the plaintiff did get possession of the property and the defendants dispossessed him thereafter. The plaintiff had become the owner of the property and hence was entitled to the possession of the said property from the defendants.
4. The finding that in the year 1965, the plaintiff entered into possession of the holdings allotted to him under the scheme is a finding of fact based on material on record and hence no interference in Second Appeal on that score is possible.
5. This takes me to the two questions of law raised before me by Shri Deshmukh, learned Counsel for the appellants. The first is that untill and unless the certificate indicating the transfer of holdings is, in fact, issued and is duly proved, the title in the property is not vested. Now, it is true that though the plaintiff had asserted about having been given the said certificate, it has not been produced on record. Section 24 contemplates preparation of the new record of rights only after issuance of a certificate. The fact that such new record of right has been prepared, would indicate that the certificate was, in fact, issued. But the said certificate has not been produced on record and hence one will have to proceed on the basis that it is not duly proved. Does not, in any way, affect the vesting of the title in the property is the question?
6. Section 22 mentions that as soon as the persons entitled to possession of holdings under this Act, are entered into possession of the holdings, the scheme shall be deemed to have come into force. Section 24 mentions that the Consolidation Officer shall grant to the owner to whom a holding has been allotted in pursuance of the scheme, a certificate in the prescribed form duly registered under the Indian Registration Act to the effect that the holding has been transferred to him in pursuance of the scheme. Close scrutiny of Chapter III in general and sections 22 and 24 in particular will indicate in no uncertain terms that the scheme is complete as soon as possession is delivered. Issuance of a transfer certificate is a matter of procedure and is only an evidence of the transfer which has laready taken place. Vesting of the title in the consolidation of holdings, thus, does not depend upon the grant of certificate of transfer, or in other words, transfer is not effected on the basis of the transfer certificate. Under the circumstances, conclusion is inevitable that the plaintiff had become the owner of the property even before issuance of a certificate under section 24.
7. Had Civil Court jurisdiction to try this suit in view of section 36-A is the second question of law, raised before me. Section 36-A mentions that no Civil Court or Mamlatdar's Court has jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the State Government or any officer or authority. Sub-section (2) of that section mentions that no order of the State Government or any such officer or authority made under the Act shall be questioned in any Civil, Criminal or Mamlatdar's Court. Now, the plaintiff had filed this suit on the basis that he has been illegally dispossessed of the property subsequent to his acquisition of the title under the Act. The defendants have disputed this fact. Quite clearly the dispute of this nature would fall within the jurisdiction of the Ordinary Civil Court. No provision of the Act is brought to my notice under which it could be said that the controversy, like this, is required to be settled, decided or dealt with under the Act either by the State Government or any officer or authority. Under the circumstances, the submission that the Civil Court had no jurisdiction to try the suit, is without any merit.
8. To conclude, the Second Appeal is dismissed with no order as to costs. Certified copy expedited.