Ramchandra Jyoti Jadhav Kaikadi and ors. Vs. Gajendra Nana Gund and ors. - Court Judgment

Excerpt:
property - sale of property - dispute as to title of suit property - jurisdiction of civil court - plaintiff-respondents purchased suit property vide registered sale deed from defendant-appellants - thereafter, plaintiff filed suit for injunction claiming that defendant took undue advantage of wrong entry made at the time of consolidation of lands and obstructed plaintiff's possession of his lands - trial court granted injunction in favour of plaintiff - in appeal, appellate court confirmed decision of trial court - defendant contended that civil court did not have jurisdiction in present dispute as once the consolidation officer while implementing the consolidation scheme has decided the area of a particular block, it was not open for the civil court to declare that the area included in the block as incorrect - hence, present appeal - held, when the title is based on a sale deed, the title can be determined only by a civil court and not by any other authority - ratio in sidagonda a. patil v. bhimgonda k. patil applied - therefore, civil court certainly had jurisdiction to decide the suit as the suit of the plaintiff was one based on his title to the area - appeal dismissed - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - according to the learned advocate, section 36b of the act clearly indicates that the issue which can only be determined by the authorities under the act has to be referred to the competent authority for determination by the civil court.nishita mhatre, j.1. the present second appeal has been filed against the judgment and order of the additional district judge, solapur in civil appeal no. 438 of 1986 which confirms the decree passed by the trial court in r.c.s. no. 23 of 1979.2. the plaintiff who expired during the pendency of the appeal is represented by his legal heirs, the respondents herein. he purchased 18 acres 30 gunthas from land bearing survey no. 442/2 under a registered sale deed dated 21.1.1952. he purchased this land from the sons of one tatya. according to the plaintiff, the sale deed was in respect of 18 acres 30 gunthas. at the time of consolidation of land bearing survey no. 442/2 in block no. 1972, the total area shown was 12 acres 28 gunthas. the plaintiff claimed that the defendant took undue advantage of the wrong entry made at the time of consolidation of the lands in block no. 1792 and interfered with the plaintiff's possession of 18 acres 30 gunthas. the plaintiff claimed that the defendant had encroached upon his land and therefore filed a suit for perpetual injunction.3. the defendant contended in his written statement that the land bearing survey no. 442 admeasuring 38 acres 6 gunthas was originally owned by his father jyoti who bequeathed the entire land to him alone as his brother tatya was a wastrel. the defendant claimed that on the insistence of the elders of the family, he gave 12 acres 26 gunthas out of this land to tatya. thereafter the land in possession of tatya was allotted survey no. 442/2 and the remaining land which according to the defendant admeasured 25 acres 20 gunthas was allotted a survey no. 442/1. the defendant therefore contended that since the plaintiff had purchased the land from the sons of tatya he could only be entitled to 12 acres 26 gunthas. the defendant also contended that on the land being measured it was found that the plaintiff had in fact encroached on the defendant's land to the extent of 6 acres 4 gunthas. he therefore, filed a counter claim for recovery of the possession of this area admeasuring 6 acres 4 gunthas.4. the trial court after appreciating the evidence concluded that the land bearing survey no. 442 was divided between tatya and the defendant equally. it was further held that a wrong entry had been made in the revenue records with regard to the tatya' s land holding and that the defendant was taking undue advantage of the same. the trial court therefore held that the plaintiff was entitled to the possession of 18 acres 30 gunthas of land being survey no. 442/2 as per sale deed of 21.1.1952. the trial court also held that the defendant had obstructed the plaintiff's possession of his lands and therefore granted a perpetual injunction against the defendant.5. aggrieved by the decision of the trial court, the defendant preferred civil appeal no. 438 of 1986 before the additional district judge, solapur. the appellate court confirmed the decision of the trial court that the plaintiff was entitled to 18 acres and 30 gunthas under the sale deed of 21.1.1952. the appellate court further held that the civil court had jurisdiction to hold that the area of land block no. 1792 is 18 acres 30 gunthas. as regards the defendant's claim that the plaintiff had encroached upon the land bearing survey no. 442/1 to the extent of 6 acres 4 gunthas, the appellate court negatived the claim of the defendant.6. the substantial questions of law raised in the present appeal are: (i) whether the civil court had jurisdiction to entertain the plaintiff's suit and whether in fact the plaintiff's remedy to correct the area included in block no. 1792 could be only by the revenue authorities; (ii) whether by declaring that the plaintiff was entitled to 18 acres 30 gunthas both the courts below had encroached upon the jurisdiction vested in the revenue authorities under section 36a and b of the bombay prevention of fragmentation and consolidation of the holding act (for short, hereinafter referred to as `the act').7. mr. kulkarni appearing for the appellants who are the heirs of the defendant before the trial court submits that both the courts below have erred in decreeing the suit when the civil court had no jurisdiction to decide the dispute between the parties. he submits that once the consolidation officer while implementing the consolidation scheme framed under the act has decided the area of a particular block it was not open for the civil court to declare that the area included in the block was incorrect. he submits that under the provisions of section 36a of the act, the jurisdiction of the civil court has been expressly barred with respect to any decision which can be taken by the authority under the act and no order passed by any authority or the state government under the act can be questioned in a civil or criminal or mamlatdar court. according to the learned advocate, section 36b of the act clearly indicates that the issue which can only be determined by the authorities under the act has to be referred to the competent authority for determination by the civil court.8. the learned advocate for the respondent on the other hand submitted that both the trial court and the appellate court have decided the issues arising in the suit correctly and their decisions are based on the evidence led in the trial court. he submits that no substantial questions of law arise in the present appeal and therefore, the appeal be dismissed.9. on perusing the plaint, i find that it indicates that the suit was filed for a declaration that the plaintiff was the owner of an area admeasuring 18 acres and 30 gunthas in land bearing survey no. 442/2 and for an injunction against the defendants from disturbing his possession. the plaint does not in any manner challenge the consolidation scheme. all that the plaintiff has sought in the suit is that the defendant be injuncted from encroaching on the area of 18 acres and 30 gunthas of land in survey no. 442/2 which the plaintiff claims is owned by him. the plaintiff has also prayed for vacant and peaceful possession of the aforesaid lands. the contention of the learned advocate for the appellant is that the plaintiff has in effect prayed for a modification of the consolidation scheme as the area allotted in land bearing survey no. 442/2 is less than 18 acres and 30 gunthas. the trial court has found that the 7/12 extracts for the land bearing survey no. 442/2 for the years 1953-1954 to 1970 to 1971 establish that that the plaintiff is the owner and possesses land admeasuring 18 acres and 30 gunthas in the aforesaid survey number. mutation entry no. 4277 which was produced on record indicates that the plaintiff is in possession and is cultivating land admeasuring 18 acres and 30 gunthas. the trial court has rightly therefore held that this mutation entry dated 29.5.1953 prevails over the earlier one. the present plaintiff had purchased the land which fell to the share of the heirs of tatya, who was entitled to 18 acres and 30 gunthas. obviously therefore the plaintiff would be entitled to the area mentioned in the sale deed executed between the plaintiff and the heirs of tatya which admittedly was 18 acres and 30 gunthas.10. the lower appellate court has confirmed these findings of the trial court. thus, what the courts below have done is to decide whether the plaintiff had title over 18 acres and 30 gunthas of land within land bearing survey no. 442/2. the question of approaching the authorities under the act for a declaration that the plaintiff is the owner of the aforesaid land would therefore not arise. the authorities under the act cannot decide the title of a person. as stated earlier, the frame of the suit is obviously for a decision on the title of the plaintiff to a certain area and therefore the question of approaching the authorities under the aforesaid act does not arise.11. the learned advocate for the appellant has relied on the judgment in the case of shevantabai maruti kalhatkar v. ramu rakhamaji kalhatkar and anr. (1998) 3 mh.l.j. 834 where the supreme court has held that where a civil court had made a reference to competent authority under section 36b of the aforesaid act regarding the validity of a sale transaction, the civil court had no powers to 'go behind the order passed by the competent authority'. these observations were made by the supreme court in view of the fact that since a fragment of the land was being sold it was necessary to obtain permission from the competent authority under the aforesaid act before the sale could be validated. similarly, in the case of narayan s. bhite and ors. v. mahadeo shripati pise : (2001) 3 bcr 262, a learned single judge of this court has followed the decision in shevantibai's case (supra) and held that when any issue arises for consideration in a suit which can be decided, settled or dealt with by the competent authority under the act it is not open for the civil court to adjudicate the same because of the express bar under section 36a of the act. this judgement also does not assist the appellant in view of the fact that the ownership or title to a property can only be decided by the civil court.12. in the case of sidagonda a. patil v. bhimgonda k. patil : 2002(3) bom.c.r. 563, a learned single judge of this court held that when the title is based on a sale deed, the title can be determined only by a civil court and not by any other authority, with which view i respectfully agree.13. in my view, therefore, both the courts below have committed no error by decreeing the suit. the civil court certainly had jurisdiction to decide the suit as the suit of the plaintiff was one based on his title to the area admeasuring 18 acres and 30 gunthas in land bearing survey no. 442/2.14. the appeal is therefore dismissed. no order as to costs.