Bombay High Court
Tanaji K. Shinde vs Mahadeo M. Pisal & Ors on 6 August, 2015
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(CIVIL APPELLATE JURISDICTION)
SECOND APPEAL NO. 745 OF 1992
Shri Tanaji Krishna Shinde,
Age : 23 years, Resident of
Jakhinwadi, Taluka : Khanapur,
Distt. Sangli. .... APPELLANT
(Org. Deft. No. 2)
ig ...VERSUS...
1] Mahadeo Maruti Pisal
(since deceased through L.R.)
1A] Smt. Rukhmini Mahadeo Pisal
2] Dattu Maruti Pisal,
aged 46 years,
3] Namdeo Maruti Pisal,
(dece deceased through L.R.)
3A] Ramchandra Namdeo Pisal
(since deceased through L.R.)
3A(i)] Smt. Rukmini Ramchandra Pisal,
(since deceased through L.R.)
3A(ii)] Rohim Ramchandra Pisal.
3A(iii)] Reshma Ramchandra Pisal
3B] Tanaji Namdeo Pisal.
4] Krishnadeo Maruti Pisal,
aged 42 years.
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5] Ananda Maruti Pisal,
(since deceased through L.R.)
5A] Lilavati Ananda Pisal.
5B] Amruta Ananda Pisal,
5C] Sau. Sangita Bapu Shinde,
5D] Savita Shahaji Sarnobat.
6] Sonabai w/o Ram Salunkhe,
age 55 years,
7] Dropadabai W/o Vasant Damle,
age 35 years,
8] Shahabai w/o Maruti Pisal,
(since deceased through L.Rs)
8A] Mahadeo Maruti Pisal
(since deceased through L.Rs.)
8B] Dattatrya Maruti Pisal,
8C] Namdeo Maruti Pisal
(since deceased through L.R)
8D] Krishnadeo Maruti Pisal.
8E] Ananda Maruti Pisal
(Since deceased through L.R)
8F] Savitri Rama Salunkhe
8G] Dropadi Vasant Damane,
Respondent Nos. 1 to 5 Agriculturst
and 6 to 8 Household Workers.
All 1 to 8 residing at Jakhinwadi,
Taluka Khanpur, Distt. Sangli.
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9] Anna Laxman Tupe
aged 75 years (since deceased through L.R.)
9A] Tarubai w/o Anna Tupe,
age 50 years, Occ. Agriculturist & Household work
Residing at Jakhinwadi,
Taluka Khanapur, Distt Sangli. ...... RESPONDENTS
(R-1 to 8 L.Rs of Org.Plff
& R-9 L.R. of Org.
Defedant No.1)
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Shri Anilkumar Patil, Advocate for appellant
Shri Rahul S. Kate, Advocate, for respondent Nos. 2, 3b, 4, 5a to 5d
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CORAM: R. K. DESHPANDE, J.
th
DATE : 6
AUGUST, 2015 .
ORAL JUDGMENT
1] In Regular Civil Suit No. 34 of 1978, the
trial Court by its judgment and order dated 27 th
October, 1986 refused to grant specific performance
of the agreement of sale dated 3rd December, 1973 at
Exh. 71. The Defendant No. 1-A is, however, directed
to return to the plaintiffs Rs.1000/- together with
interest thereon at the rte of 6% per annum from the
date of filing of the suit till the actual payment is
made. This was the subject matter of challenge in
Regular Civil Appeal No. 13 of 1987,which has been
decided by the lower appellate Court on 17 th August,
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1992. The lower appellate Court has passed a decree
for specific performance of agreement at Exh. 71.
The operative portion of the order passed by the
lower appellate Court being relevant, is reproduced
below.
"The appeal is allowed. The impugned
judgment and decree is set aside. The
plaintiff's suit is decreed for specific
performance of the agreement of sale deed
dated 3rd December, 1973 (Exhibit 71) as
follows :
The Defendant No. 1-A shall immediately
apply for permission to sell the suit land in
favour of the Plaintiff Nos. 1-1 to 1-8 to the
Competent Authority under the provisions of
Bombay Prevention of Fragmentation and
Consolidation of Holdings Act, within period
of one month after receiving such
permission, she shall receiving remaining
consideration of Rs.7,100 from the Plaintiff
Nos. 1-1 to 1-8 and shall execute sale deed
in respect of the suit lands in their favour.
The registration charges shall be incurred by
the Defendant No. 1-A. The Defendant No.2
shall join the Defendant No. 1-A as executant
No.2 of the sale deed.
The Plaintiff Nos. 1-1 to 1-8 shall recover
joint possession of the suit lands from the
Defendant No.2 after execution of the sale
deed.
On failure of the Defendant to obtain sale
permission and execute sale deed as stated
above, the Plaintiff Nos. 1-1 to 1-8 would be
entitled to get the decree executed through
process of law.
The Defendant Nos. 1-A and the Defendant
No. 2 shall bear their own costs and shall
costs of the suit and that of the appeal, to
the plaintiff Nos. 1-1 to 1-8/
2] The substantial questions of law framed by
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this Court and pressed by the learned counsel
appearing for the appellant are contained in
paragraph 1(a) and 1(b) of the memo of appeal,
which are reproduced below.
(a) Whether the agreement of the sale dated 3 rd
December, 1973, in favour of the Plaintiff was
unenforceable since the sale of the suit land
would admittedly create a fragment and was
thus illegal under Sections 6, 7 and 31 of the
Bombay Prevention of Fragmentation and
Consolidation of Holdings Act?
(b) Whether the finding recorded by the lower
Appellate Court in paragraph 17 of his
judgment that the suit land is not an irrigated
land since it receives well water is legal and
proper?
3] It is not disputed that if by way of
agreement to sell, the land proposed to be sold
creates a fragment then it would be hit by Section 6,
7 and 31 of the Bombay Prevention of Fragmentation
and Consolidation of Holdings Act. Keeping in view
this aspect of the matter, the lower appellate Court
has issued directions to the defendant no. 1-A to
immediately apply for permission to sell the suit land
in favour of the plaintiff Nos. 1-1 to 1-8 to the
competent Authority under the said Act and upon
receiving such permission, the defendant no.1-A shall
receive the remaining consideration of Rs.7,000/-
from the plaintiff nos. 1-1 to 1-8 and shall execute the
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sale deed in their favour.
4] It is not in dispute that all the questions in
respect of creation of fragment and also of the fact
whether the land in question is an irrigated land are
required to be decided by the Competent Authority
under the said Act. If the questions are answered
holding that such permission is not required to be
granted then the decree passed by the lower
appellate Court shall become uneforceable, but if the
competent Authority grants the permission then the
decree would become enforceable on the terms
specified in the order passed by the lower appellate
Court. It is also made clear that the Competent
Authority under the said Act shall decide all the
questions arising between the parties in respect of
fragment without being influenced by any of the
observations either made by this Court or the lower
appellate Court or the trial Court.
5] With this clarification, no alteration is
called for in the judgment and order passed by the
lower appellate Court. The second appeal stands
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disposed of.
Consequently, the civil application, if any, does not
survive.
JUDGE
Rvjalit
