Sultana Sayyad Munir vs Jayantilal Pannalal Bagrecha And ...
2021 Latest Caselaw 1709 Bom

                                                                24-2020-AO with CA.odt


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                         APPEAL FROM ORDER NO.24 OF 2020
                                        WITH
                         CIVIL APPLICATION NO.6921 OF 2020

          Sultana Sayyad Munir                                       ... Appellant

                   Versus

1.        Jayantilal s/o Pannalal Bagrecha
2.        Hemchand s/o Tarachand Bhandari                            ... Respondents

                                 ..........
Mr. Mazhar A. Jahagirdar, Advocate for appellant.
Mr. A. D. Ostwal, Advocate for respondents.
                                 ..........

                                    CORAM       : SMT. VIBHA KANKANWADI, J.

                                    DATE        : 27th January, 2021

ORDER :-


.                  Present appeal from order has been filed under Section 104

read with Order 43 of the Code of Civil Procedure to challenge the order

passed by the learned District Judge-10, Ahmednagar on Application

Exhibit-05 in Regular Civil Appeal No.118 of 2020; whereby the

application for interim injunction restraining the respondents from

selling, transferring or alienating the suit property during the pendency

of the appeal before the learned District Judge, came to be rejected.

2. Present appellant is the original plaintiff and respondents

are the original defendants (hereinafter the parties are referred to by

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their nomenclature before the Trial Judge). Plaintiff filed suit i.e.

Regular Civil Suit No.478 of 2018 for preemption and for permanent

injunction before the learned Civil Judge Senior Division, Ahmednagar.

The said suit came to be dismissed on 09-03-2020 by learned 8 th Joint

Civil Judge Senior Division, Ahmednagar. The said judgment and decree

is under challenge in Regular Civil Appeal No.118 of 2020. At the

interim stage, the said application Exhibit-05 has been filed by the

appellant - plaintiff for temporary injunction.

3. Heard learned Advocate Mr. Mazhar A. Jahagirdar for

appellant and learned Advocate Mr. A. D. Ostwal for respondents

4. It has been vehemently submitted on behalf of the appellant

that the appellant - plaintiff has a right of preemption to purchase the

land presently owned by the defendants. Defendants are the owners of

agricultural land Gut No.50/1 admeasuring 6 Hectare 91 R situated at

Mauje Sakat Khurd, Tq. Nagar, District Ahmednagar. It is the contention

of the plaintiff that original Gut No.50 was admeasuring 10 Hectare 91

R which has been thereafter subdivided as 50/1 and 50/2. Plaintiff and

her husband's brothers and plaintiff's nephew had purchased the said

land original Gut No.50 about 25 to 30 years ago i.e. on 22-04-1991.

The brother in law and nephew of the plaintiff had sold 1 Hectare 60 R

land from Gut No.50 to Sindhu Nitin Jadhav and others by sale deed

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dated 30-01-2010. Sindhu Nitin Jadhav, thereafter, sold the land to

defendant Nos.1 and 2 on 10-05-2011. The plaintiff has come to know

that now defendant Nos.1 and 2 want to sell the land and, therefore,

she met defendant Nos.1 and 2 on 15-08-2018 and expressed her

willingness to purchase the land, however, the defendants refused and,

therefore, she filed the suit. It was represented by the defendants in

their written statement that they don't want to sell the land and,

therefore, the suit was dismissed. Further, even at the time when the

matter was before the learned District Judge, same contention was taken

and, therefore, the said application came to be rejected on 04-08-2020.

However, thereafter, on 02-09-2020, the defendants have sold part of

the land to one Rajendra Namdev Gund and another part was sold to

Pravin Shankar Pawar and Akshay Shankar Pawar. Photocopies of the

sale deeds have been produced. This shows that though the present

appellant - plaintiff is having right to purchase the suit property, yet,

intentionally, she has been kept away. Therefore, it is necessary to

restrain the respondents from selling the land any further.

5. Per contra, the learned Advocate representing the

respondents strongly opposed the appeal from order and supported the

reasons given by the learned District Judge-10, while rejecting the

application. It was submitted that the plaintiff is claiming preferential

right under the Maharashtra Prevention of Fragmentation and

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Consolidation of Holdings Act, 1947 (hereinafter referred to as the

'Fragmentation Act'), however, she had failed to prove that she has any

such kind of right before the learned Lower Court. The relief of

injunction is equitable and unless the right is shown, the discretion

cannot be exercised, therefore, the application Exhibit-05 was rightly

rejected.

6. At the outset, it can be seen from the documents those have

been produced on record that the plaintiff and defendants are from

different families and also from different religions. It was reiterated by

the learned Advocate appearing for the plaintiff that the plaintiff is

claiming preferential right to purchase the land under the

Fragmentation Act. It appears from the judgment of the learned Trial

Judge that there was no evidence that the defendants were selling the

land or had intention to sell, therefore, the suit was held to be

prematured. No doubt, the legal aspect involved as to whether the

plaintiff is having right to purchase the suit land by preemption is not

discussed by the learned Lower Court, yet, prima facie it appears that

there was no compliance of Section 7(2) of the Fragmentation Act.

Further, the plaintiff has not shown as to what is the standard of holding

in village Sakat Khurd and after the alleged subdivision of original Gut

No.50, Gut No.50/1 has become fragment as defined under the

Fragmentation Act. Unless both the portions of the land become

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fragment, any such right under the Fragmentation Act, cannot be used

by the holder of the land. In other words, in order to exercise the right

under Section 7(1) of the Fragmentation Act, both the lands i.e. of the

plaintiff and the defendants should be a fragment. When it is not shown

prima facie that the provisions of the Fragmentation Act are applicable

and it gives a right to the plaintiff, there is no question of granting any

injunction in favour of the plaintiff. Further, already the said has taken

place and, therefore, it will not be out of place to mention here that the

application has been rendered infructuous. Therefore, there is no merit

in the present appeal from order. It deserves to be dismissed.

Accordingly, it is dismissed.

7. In view of dismissal of present appeal from order, Civil

Application No.6921 of 2020 does not survive. Accordingly, the same

stands disposed of. Interim relief granted earlier vide order dated

26-10-2020, which was in operation till today, shall stand vacated.

[SMT. VIBHA KANKANWADI, J.]

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