The court upheld the validity of the agreement of reconveyance and held that the plaintiffs were entitled to specific performance. It also emphasized the requirement for the plaintiffs to obtain permission from the Competent Authority under Rule 27 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.

JUDGMENT - M.P. KANADE, J.:---There is no substance in this second appeal filed by the defendant against the judgment and decree passed by the learned District Judge, Pune, dated February 9, 1973.

2. It is an admitted fact that the plaintiffs executed a registered sale-deed on February 7, 1956 in respect of Survey No. 27/2, admeasuring 37 gunthas situated at Village Shivandi for a consideration of Rs. 800/-. There was also an agreement of reconveyance between the parties on the same date which is produced on record at Ex. 50. The plaintiffs contended that in view of the agreement of reconveyance they are entitled to a decree for specific performance. The suit is resisted by the defendant contending, inter alia, that the said agreement of reconveyance has been obtained by the plaintiff by practicing fraud on him. The said agreement is unregistered and that he has made some improvements in the land and having regard to the circumstances, the Court should not exercise the discretion to grant a decree for specific performance.

3. The trial Court considered the entire evidence and held that no fraud was practiced on the defendant. The agreement at Ex. 50 has been proved and so far as the improvements to the lands to the extent of Rs. 600/-, the claim has been examined. However, it is held that the defendant had used and enjoyed the suit property.

4. Defendant feeling aggrieved by the aforesaid judgment and decree filed an appeal before the learned District Judge, Pune, bearing Civil Appeal No. 224 of 1972. In the appeal further point was raised, that a decree for specific performance cannot be granted in view of the provisions of section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The Appellate Court confirmed the findings recorded by the trial Court and held that there was no fraud practiced on the defendant and the agreement of reconveyance at Exhibit 50 has been executed by the defendant. However, it is held that the plaintiffs should obtain permission or sanction from the Competent Authority under the provisions of Rule 27 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.

5. Mr. Dalvi, who appears on behalf of the defendant, contended that both the courts below erred in holdings that Exhibit 50 is an agreement of reconveyance. Having regard to the various circumstances it should be held that the defendant had not executed the document, and lastly he submitted that nearly for nine years the plaintiffs have not filed a suit for specific performance, and therefore, the courts below were not right in the exercise of their discretion in the matter of grant of decree for specific performance in favour of the plaintiffs.

6. Identical submissions were made in the Appellate Court and the Appellate Court has given a well-reasoned judgment considering each of the submission made by Dr. Dalvi in this Court. That being question of fact, I cannot interfere with the said finding in view of the provisions of section 100 of the Code of Civil Procedure.

7. Mr. Patankar, who appears on behalf, of the plaintiffs, brought to my notice the decree passed by the District Court which directed the plaintiffs to obtain necessary permission from the Collector under Rule 27 of the Bombay Prevention of Fragmentation Consolidation of Holdings Act, 1947. He submitted that such a point was not raised in the trial Court, and for the first time the above contention is taken in the Appellate Court. He has also pointed out that the defendant himself in his Appeal Memo has shown all the plaintiffs as agriculturists, and secondly he brought to my notice the statement on oath made by the plaintiff No. 1 that by profession he is an agriculturist. In view of the provisions of section 31 of the aforesaid Act, no sanction would be required as sub-clause (3) of the said section 31 lays down that nothing in sub-section (1) shall apply to any lands sold to an agriculturist or agricultural labourer

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