The provisions of the Fragmentation Act do not bar the transfer of a fragment of land if the transfer is to an agriculturist or agricultural labourer.

JUDGMENT - DESHPANDE D.B., J.: - One Lakbu Bala Pawar was the owner of the suit land bearing Gat No. 353 admeasuring 1 acre, 25 gunthas situated at village Vahagaon in Karad Tahsil of Satara district. On 23-6-1964, Lakhu sold this land to both the defendants for an amount of Rs 700(vide Ex. 46). On the same day the defendants executed another agreement Ex.41 in favour of Lakhu agreeing to reconvey the land to Lakhu for the same amount after the end of the year after repayment of the amount.

2. This transaction was validated under section 31AA of the Bombay Prevention of Fragmentation and Consolidation of HoldingS Act, 1947(here-inafter referred to As the “Fragmentation Act”) by paying the prescribed penalty. In fact I shall point out that this validation was Also not at all necessary in this case. After the death of Lakhu all his heirs And legal repre-sentatives who are plaintiffs 1 to 8 in this suit gave a notice dated 8-1968 to the defendants for reconveyance of the land after offering the amount of Rs. 700 to them. Both the defendants declined and hence the plaintiffs filed this suit.

3. The defendants, inter alia, resisted the suit on the ground that it is A fragment under the Fragmentation Act and that is only the point which survives in this Appeal and we are not concerned with the other contentions that were raised.

4. After considering the evidence and the legal position the learned trial Judge held that there was An agreement toresell the property and that the plaintiffs were entitled to specific performance. He held further that the suit was tenable even in view of section 31 of the Fragmentation Act. Consequently he passed a decree in favour of the plaintiffs for specific performance and ancillary reliefs.

5. Being aggrieved the defendants preferred Civil Appeal No. 152 of 1971 in the District Court at Satara. The learned District Judge who heard the appeal reversed the finding of the trial Court and held that the contract was unenforceable in view of the provisions of the Fragmentation Act and so he allowed the appeal and dismissed the plaintiffs suit but directed the parties to bear their own costs.

6. Feeling aggrieved the plaintiffs have preferred this second appeal.

7. In order to attract the bar of section 31 of the Fragmentation Act, the holding must have been allotted under the Fragmentation Act, The relevant provisions of section 31(1) of the Fragmentation Act run As follows:

“31(1) Notwithstanding anything contained in any law for the time being in force, no holding allotted under this Act, nor any part thereof, shall save As otherwise provided in this section-

(a) be transferred, whether by way of sale(including sale in execution of a decree of a civil Court or for recovery of arrears of land revenue or for sums recoverable As Arrears of land revenue) or by way of gift, exchange, lease, or otherwise; or

(b) be sub divided, whether under a decree or order of a Civil Court or any other competent authority, or otherwise, so As to create a fragment, without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed.”

8. It will, therefore, be seen that in order to attract the bar of this section, the holding must have been allotted under this Act. There is nothing in the instant case to show that the suit land was A holding allotted to the defendants under this Act. On the admitted facts the suit land cannot be a holding allotted under the Fragmentation Act to the defendants because Lakhu executed a sale deed of the suit land to the defendants privately. The provision of allotment is laid down in rule 11 of the Rules framed under the Fragmentation Act. So all these provisions clearly go to show that the suit land is not a holding allotted under this Act and, therefore, the bar under section 31 of the Fragmentation Act cannot be attracted. Both the Courts below have proceeded on the Assumption that this section is Appli

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