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Judgment
. Heard Mr. N. M. Kolhe, learned Counsel for the Appellant, Ms. M. V. Babhulkar, learned Counsel for the Respondent No.2 and Mr. H. D. Marathe, learned AGP for the Respondent Nos.1 & 3.
By this Appeal, Appellant is challenging the Judgment and Order dated 10/6/2013 passed by the Civil Judge Senior Division, Darwha, District Yavatmal in LAC No. 379/2004, whereby the learned Reference Court has dismissed the reference proceedings filed by the Appellant, as the Appellant failed to adduce her evidence for a considerable period.
The learned Counsel for Appellant states that the decision of the learned Reference Court, which is under challenge, is not based on the merits of the proceeding, but it is only based on the ground that the Appellant did not adduce evidence in the matter.
The learned Counsel for Respondent has relied upon the Judgment of the Division Bench of this Court in the case of Diwakar Prabhakar Chopade and Others V/s Sub Divisional Officer/Land Acquisition Officer, Aurangabad and Others, 2019(6) MLJ 591, in which, the Division Bench has observed in paragraph No.31 as under :
“31.In the result, we hold as under:
(A)That a civil revision application under section 115 of C.P.C. against, any order passed, otherwise than on merits, in an application under section 18 of the L.A. Act by the Civil Court, is not maintainable.
(B)We also hold that the judgments in the case of Kawadu Madhav Bansod, Appasaheb Mohanrao Chede, Kamlakar Laxman Suryawanshi and Irnappa @ Irappa Angire (supra), holding that a civil revision application is maintainable, are rendered per-incuriam to the statutory provisions as contained in the proviso to sub-section (1) of section 115 of the Code of Civil Procedure and are also rendered per incuriam in view of the judgment of the Hon'ble Apex Court in the case of Shiv Shakti (supra).
(C)We also hold that an 'order otherwise than on merits', passed in proceedings under section 18 of the L.A. Act, by the Civil Court, cannot be considered as an award and, therefore, does not amount to a decree, as defined in Section 2(2) of C.P.C. by virtue of the deeming provision under section 26(2) of the L.A. Act and, therefore, an appeal against it also would not be maintainable.
(D)We hold that the judgment in Venka 's case (supra), holding thatť an appeal is maintainable, is on a different footing altogether considering that the judgment passed therein was on merits after considering the evidence and, therefore, was an award and consequently a decree under section 2(2) of C.P.C. by application of Section 26(2) of the L.A. Act.
(E)We further hold that a reference under section 18 of the L.A. Act, in the light of the mandate as laid down by the Hon'ble Apex Court in the case of Khazan Singh (supra), has to be decided by the Civil Court on the basis of the material before it, on merits.
(F)We further hold that an 'order passed otherwise than on merits' in proceedings under section 18 of the L.A. Act by the Civil Court, in case it has been so passed, would be susceptible to a challenge under Article 227 of the Constitution of India before the High Court in its supervisory jurisdiction, or u/o IX Rule 9 r/w. section 151 CPC. by virtue of section 53 of the L.A. Act.”
The learned Counsel for Appellant has relied upon the Judgment of the Co-ordinate Bench of this Court in the case of Ramdas Shivlal Rathod V/s The State of Maharashtra & Ors. in First Appeal No. 666/2022 decided on 16/9/2025, whereby the Co-ordinate Bench of this Court has entertained the Appeal and decided the same on merits.
In the present case, considering the fact that the Division Bench has decided the issue by holding that, the order, which is passed without considering the merits, does not amount to a decree, as defined under Section 2(2) of the Code of Civil Procedure by virtue of the deeming provision under Section 26(2) of the Land Acquisition Act and held that such order can be challenged in Writ Petition under Article 227 of the Constitution of India and not in Appeal.
In view of the law laid down by the Hon’ble Division Bench of this Court, in my considered opinion, present Appeal is not tenable.
Accordingly, the First Appeal stands disposed of with liberty to the Appellant to prefer the Writ Petition against the impugned Judgment and Order dated 10/6/2013, and the period, during which the present Appeal was pending before this Court, will be considered positively while deciding the Writ Petition.