Case Note & Summary
The present second appeal arises from a property dispute between Kamlabai Suresh Khadse (appellant) and Tukaram Rajaram Ingole, Mahadev Rajaram Ingole, and Radhabai Gangaram Undare (respondents). The appellant filed Regular Civil Suit No. 267 of 1999 seeking a perpetual injunction, while the respondents filed Regular Civil Suit No. 54 of 1999 also for a permanent injunction, both relating to the same property. The suits were consolidated and common evidence was recorded. The trial Court, by judgment dated 30.03.2002, dismissed the appellant's suit and decreed the respondents' suit. The appellant appealed only against the dismissal of her suit (Regular Civil Appeal No. 134 of 2002) but did not challenge the decree in favour of the respondents. The lower appellate Court, relying on Premier Tyres Limited v. Kerala State Road Transport Corporation, AIR 1993 SC 1202, dismissed the appeal on the ground that there was no challenge to the co-decree. In the second appeal, the appellant's counsel argued that the trial Court lacked jurisdiction under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, and that the lower appellate Court erred in not considering the appeal on merits. He relied on Jaisingh Jairam Tyagi v. Mamanchand Ratilal Agrawal (1980) 3 SCC 162 and Shevantabai Maruti Kalhatkar v. Ramu Rakhamaji Kalhatkar (1998) 8 SCC 76 to submit that an erroneous decision on jurisdiction does not operate as res judicata and that civil courts have no jurisdiction over matters under the Act. The High Court, however, found that no substantial question of law arose as the appellant had not challenged the decree in favour of the respondents, and the lower appellate Court's dismissal was proper. The second appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - The appellant challenged the dismissal of her suit for perpetual injunction, but did not challenge the decree in favour of the respondents in the consolidated suit. The lower appellate court dismissed the appeal relying on Premier Tyres Limited v. Kerala State Road Transport Corporation, AIR 1993 SC 1202. The High Court held that no substantial question of law arose as the appellant failed to challenge the co-decree, and the appeal was dismissed. (Paras 1-6) B) Jurisdiction - Civil Court - Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 - The appellant argued that the civil court had no jurisdiction under the Act, relying on Jaisingh Jairam Tyagi v. Mamanchand Ratilal Agrawal (1980) 3 SCC 162 and Shevantabai Maruti Kalhatkar v. Ramu Rakhamaji Kalhatkar (1998) 8 SCC 76. However, the High Court did not consider this issue as the appeal was dismissed on procedural grounds. (Paras 4-6)
Issue of Consideration
Whether the lower appellate court erred in dismissing the appeal on the ground that the appellant did not challenge the decree in favour of the respondents in the consolidated suit, and whether the civil court had jurisdiction under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.
Final Decision
The second appeal is dismissed. No order as to costs.
Law Points
- Second appeal
- substantial question of law
- jurisdiction of civil court
- Bombay Prevention of Fragmentation and Consolidation of Holdings Act
- 1947
- res judicata
- erroneous decision on jurisdiction
