Laxman S/O Bajirao Jeughale vs Nitin @ Nitu S/O Punjabrao ...
2016 Latest Caselaw 2769 Bom

    11-J-WP-1001-15                                                                                1/4




                                                                                           
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR.




                                                                   
                               WRIT PETITION NO.1001 OF 2015


    Laxman s/o Bajirao Jeughale 




                                                                  
    aged 50 years, Occ. Agriculturist, 
    R/o Warwand, Tal. and Dist. Buldhana.                             ... Petitioner 

    -vs-




                                                     
    1.  Nitin @ Nitu s/o Punjabrao Jeughale
         age 22 years, Occ. Agriculturist, 
                                      
    2.  Sachin s/o Punjabrao Jeughale,
         Minor, by his next friend 
                                     
         natural mother plaintiff No.4. 

    3.  Pratibha d/o Punjabrao Jeughale,
         Major, student, 
             


    4.  Nirmala w/o Punjabrao Jeughale,
          



         Major, Agriculturist and household, 

         All residents of Warwand,  
         Tal. and Dist. Buldhana.                                     ...  Respondents.  





    Shri R. G. Kavimandan, Advocate for petitioner. 
    Shri D. T. Patil, Advocate for respondents. 





                                                  CORAM  : A.S.CHANDURKAR, J. 

DATE : June 13, 2016

Oral Judgment :

Rule. Heard finally with consent of learned counsel for the

parties.

The petitioner who is original defendant No.7 is aggrieved by

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order dated 06/12/2014 whereby the trial Court did not accept the prayer

made by the said defendant for framing an issue with regard to validity of

sale deed dated 25/05/2005 on the ground that the same was hit by

provisions of The Maharashtra Prevention of Fragmentation and

Consolidation of Holdings Act, 1947 (for short, the Act of 1947). The

respondents are the original plaintiffs who have filed suit for setting aside

alienation alongwith a prayer for confirming their possession which they

claim on the basis of the property being a joint family property. In the said

suit, sale deed dated 25/05/2005 is also under challenge. The suit is being

contested by the defendant No.7 who relied upon the said sale deed which

has been executed by defendant No.6 in his favour. The trial Court framed

issues below Exhibit-76. The defendant No.7 moved an application below

Exhibit-114 for framing additional issues. One issue was with regard to the

aspect as to whether the sale deed dated 25/05/2005 was hit by the

provisions of the Act of 1947. By the impugned order, the trial Court refused

to frame the said issue.

2. Shri R. G. Kavimandan, the learned counsel for the petitioner

submitted that separate proceedings under the Act of 1947 were initiated by

the original plaintiffs before the Sub-Divisional Officer. After the Sub-

Divisional Officer declared the sale deed to be illegal, the petitioner had

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challenged the said order and the Divisional Commissioner had remanded

the proceedings for fresh consideration. These proceedings were pending.

He therefore submitted that as necessary pleadings with regard to the

invalidity of the sale deed vis-a-vis the Act of 1947 were already on record,

the trial Court ought to have framed an issue in that regard.

3. Shri D. T. Patil, the learned counsel for the respondents supported

the impugned order. According to him, the pleadings on record did not give

rise to any such issue as prayed. He submitted that the outcome of the

proceedings which were pending before the Sub-Divisional Officer would be

binding on the parties and therefore it was not necessary to again frame an

issue and refer the matter to the Sub-Divisional Officer. He submitted that

the plaintiffs were seeking relief with regard to setting aside alienation and

hence the trial Court was justified in not accepting the prayer made by the

petitioners.

4. Perusal of the pleadings of the parties indicate that the plaint was

amended and it was pleaded that the sale deed in question contravened the

provisions of the Act of 1947. The defendant No.7 in his written statement

denied this stand of the plaintiffs and also denied that the sale deed was hit

by the provisions of the Act of 1947. The trial Court noted the pendency of

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proceedings between the parties under provisions of the Act of 1947 wherein

the very same sale deed has been challenged. Considering the provisions of

Section 36-B(1) of the Act of 1947 coupled with the fact that the proceedings

in that regard are already pending before the Sub-Divisional Officer, the

following order would serve the interests of justice.

i) The trial Court is directed to frame an issue as to whether the sale

deed dated 25/05/2005 contravenes the provisions of the Act of

ii) 1947.

The proceedings pending before the Sub-Divisional Officer,

Buldhana pursuant to the order of remand dated 17/07/2014 passed by the Commissioner, Amravati Division shall be treated as proceedings referred by the Civil Court pursuant to aforesaid

issue for adjudication.

iii) The Sub-Divisional Officer shall decide the proceedings expeditiously and within a period of three months from the next date of hearing.

iv) In terms of provisions of Section 36-B(1) of the Act of 1947, the proceedings in the civil suit shall remain stayed till decision of the aforesaid proceedings. Liberty is granted to the parties to move

the civil Court for adjudication of the suit after culmination of the proceedings under the Act of 1947.

v) Rule is made absolute in aforesaid terms with no order as to costs.

JUDGE

Asmita