Bombay High Court
Raghunath Gyanoba Kadam And ... vs Ashok Vishambhar Trimukhe And ... on 30 September, 2016
Bench: T.V. Nalawade
1 WP 2743 of 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 2743 of 2015
1) Raghunath s/o Gyanoba Kadam,
Age 89 years,
Occupation: Agriculture.
R/o Kasar Shirsi, Taluka Nilanga,
District Latur.
2) Seemabai s/o Raghunath Kadam,
Age 67 years,
Occupation: Household,
R/o Kasar Shirsi, Taluka Nilanga,
District Latur. .. Petitioners.
Versus
1) Ashok s/o Vishwambar Trimukhe,
Age 43 years,
Occupation: Business,
R/o Harijawalga,
Taluka Nilanga, District Latur.
2) Suresh s/o Vishwambar Trimukhe,
Age 39 years,
Occupation: Business,
R/o Harijawalga,
Taluka Nilanga, District Latur. .. Respondents.
--------
Smt. Madhaveshwari D. Thube-Mhase, Advocate, for
petitioners.
Shri. S.P. Shah, Advocate, for respondent Nos.1 and 2.
----------
CORAM: T.V. NALAWADE, J.
DATE : 30 SEPTEMBER 2016
::: Uploaded on - 07/10/2016 ::: Downloaded on - 08/10/2016 00:07:08 :::
2 WP 2743 of 2015
JUDGMENT:
1) Rule. Rule made returnable forthwith. By
consent, heard both sides for final disposal.
2) The petition is filed to challenge the order
made on Exhibit 86 in Regular Civil Suit No.77/2012
presently pending in the Court of the Civil Judge, Senior
Division,
Nilanga. The application filed by present
petitioners to refer one issue to the authority created
under the Maharashtra Prevention of Fragmentation and
Consolidation of Holdings Act, is rejected by the trial
Court.
3) The plaintiff, vendor is challenging one
transaction of sale of 1 R portion of land Gat No.20/K
having area of 94 R. It is the case of the plaintiff that
selling of 1 R portion which is described with boundaries
amounts to creation of fragment and this is prevented by
the provision of section 8 of the Act and the transaction
was void in view of provision of section 9 of the Act. In
view of provision of section 36-B of the Act plaintiff had
3 WP 2743 of 2015
prayed for referring this point to the authority to take
decision on this point. On this point, learned counsel for
the petitioners placed reliance on a case of the Apex Court
reported as (2000)9 SCC 189 (Gangabhishan v. Motiram) .
This Court has carefully gone through the copy of sale
deed which was supplied by the original defendants. The
land shown to be sold is part of Sy.No.20/K and it is
described by giving boundaries and it is clear that 1 R is
separated from the remaining portion of the aforesaid
survey number. Provisions of sections 8 and 9 of the Act
show that there is prohibition to create fragment. Whether
1R portion sold amounts to fragment, whether the
transaction was hit by provision of section 9 of this Act,
need to be decided by the authority created and for that
Civil Court is bound to refer the matter to the authority
under section 36-B of the same Act.
4) In the present matter, on one hand the Civil
Court has held that the issue whether the transaction is
hit by provision of aforesaid Act, is not involved in the
matter and on the other hand it is held that there is no
need to refer the said point to the authority. Necessity of
4 WP 2743 of 2015
framing of the issue needs to be on the basis of rival
pleadings and the pleadings are already quoted. Relevant
portion of the sale deed is also mentioned. Thus there was
case made out for referring the matter to the authority.
This Court holds that the trial Court has committed
serious error in rejecting the application filed at Exhibit
86.
5) In the result, the order made by the learned
Judge of the trial Court is hereby set aside. The
application at Exhibit 86 is hereby allowed. Rule is made
absolute in those terms.
Sd/-
(T.V. NALAWADE, J. )
rsl
