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2003 Supreme(Bom) 323
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Patel J.N., J.
Tukaram Motiram Shinde (Dead through L.Rs.) others .... Appellants.
Versus
Vishwanath Bhimrao Khandele.... Respondent.
Second Appeal No. 107 of 1986, decided on 11-3-2003.
Advocates appeared :
R.R. Deshpande, for appellants.
Mrs. Mrinal Shesh, for respondent.
Headnote:Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 - Sections 7 and 8 - Object of the Act being to prevent fragmentation of holdings, purchase of two adjoining sub-divisions of land under same survey number on same day from plaintiff and his brother does not contravene either section 7 or 8 - Standard holding thus made out is not hit by section 8.
Certainly. Based on the provided legal document, here are the key points:
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The case involves a dispute over the ownership and transfer of agricultural land, specifically Survey No. 65/3 and 65/4, and whether the transactions comply with the provisions of the Fragmentation of Holdings Act (!) (!) (!) (!) .
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The plaintiff claimed that the sale deed was nominal and executed as security for a loan, with an understanding of reconveyance upon repayment; the defendant asserted that the sale was for consideration and valid (!) (!) .
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The trial Court found in favor of the defendant, holding that the sale deed was valid and that the defendant had become the owner of the land (!) .
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The appellate Court, however, reversed this decision, holding that the transaction was prohibited under the provisions of the Fragmentation Act, specifically citing that the sale created a fragment in violation of the law (!) (!) .
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The appellate Court's reasoning was based on the fact that the land was subdivided into smaller units below the standard area fixed by government notification, thus constituting a fragment (!) .
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The appellant's counsel argued that the transaction did not violate the law because the entire holding was transferred and that the land purchased from the brother was also part of the total holding, thus not creating a fragment (!) (!) .
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The respondent's counsel contended that the transaction was void under the law because it created or involved a fragment, which the law aims to prevent, and that the transaction was not permissible under the provisions of the Act (!) (!) .
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The law prohibits transfer or partition that results in creating a fragment, especially when the land is below the standard area fixed for dry crop land in the district (!) (!) .
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The law allows certain exceptions, such as transfers to contiguous owners or recognized subdivisions, or transfers for public purposes, but these do not seem to apply in this case (!) (!) (!) .
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The court emphasized that if the land was already a fragment, subsequent transfers creating additional fragments are prohibited unless they fall under exceptions or are authorized by the competent authority (!) (!) .
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There was a procedural lapse noted in the appellate Court's failure to refer the matter to the competent authority under the relevant section, which is necessary when a transaction is suspected to violate the law (!) .
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Ultimately, the appellate Court's order to restore possession was set aside, and the transaction was deemed not to violate the law because the entire holding was transferred, and the sale from the brother was also lawful (!) (!) .
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The appeal was allowed, and the previous order for possession was quashed, emphasizing that the transaction was lawful and not in breach of the provisions of the Fragmentation Act (!) (!) .
Please let me know if you need further analysis or specific legal advice based on this case.
2. The substantial question of law which is required to be decided in this Second Appeal is; (1) whether the lower Appellate Court was right in giving finding that the defendant do not own adjoining land to the suit land, in view of the fact that the defendant has purchased on the same date i.e. on 29-1-1970, the suit land Survey No. 65/3 and Survey No. 65/4, together admeasuring 4 acres 3 gunthas; (2) whether the transaction between the plaintiff and the defendant would attract section 8 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as "Fragmentation Act, 1947" for short), and that the Civil Court had no jurisdiction to deal with the issue in view of section 36(b) of the Fragmentation Act, 1947.
3. The respondent/original plaintiff filed a suit against the appellant/original defendant in the Court of Civil Judge, Junior Division, Pusad which came to be registered as Civil Suit No. 6/1982, and was decided by judgment and order dated 23-8-1982. The suit was for recovery of possession of field Survey No. 65/3 (Mouza Kalambula, Taluq Umarkhed, District Yavatmal). According to the plaintiff the suit property is an ancestral property of the plaintiff and he executed a nominal sale deed in favour of the defendant as collateral security against the loan of Rs. 1000/- borrowed from the defendant in the year 1970, and therefore it was a nominal sale deed and was not to be acted upon. It is submitted that as it was a money lending transaction, the plaintiff was to pay interest @ Rs. 250/- per year to the defendant till the loan was repaid. The period for repaying the loan was four year and on repayment of the loan the defendant was to execute sale deed in favour of the plaintiff of the suit land i.e. would reconvey the title. It is with this understanding that the plaintiff executed sale deed in favour of the defendant on 29-1-1970, after receiving Rs. 1000/- from the defendant.
4. It is the case of the plaintiff that he has fulfilled the terms and conditions of the loan by paying interest, but in the year 1972-73 as the plaintiff was unable to pay interest therefore he gave possession of 1 acre of land out of the said property to the defendant with an understanding that the defendant would appropriate the crops therefrom in lieu of the interest and on repayment of the loan, the defendant would hand over possession of the suit land to the plaintiff. According to the plaintiff he took loan from the society on the suit field and paid land revenue of the suit field up to the year 1976. In the year 1974 the plaintiff requested the defendant to execute the sale deed in his favour, but the defendant refused to do so and took forcible possession of the remaining land of the plaintiff in the year 1976-77. The incident was reported to the police. It is the case of the plaintiff that the defendant got the said land mutated in his name with the help of Patwari and behind the back of the plaintiff. It was also pleaded that the sale deed is contrary to the provisions of Fragmentation Act, 1947, and therefore, the defendant cannot become the owner of the suit land. Another contention of the plaintiff was that the market price of the suit land was Rs. 4000/- per acre in the year 1972-73 and under this circumstance, the plaintiff is entitled to possession of the suit land from the defendant.
5. In reply to the plaintiff's claim, the defendant filed his written statement and stated that he has purchased the suit land for a consideration of Rs. 1000/-, for which a sale deed came to be executed in his favour on 29-1-1970, and that he is in possession of the suit land. He also took plea that the suit property is not properly valued for the purpose of Court fees and jurisdiction and, that the plaintiff has sold his field Survey No. 41(2-C) admeasuring 3.12 acres to one Anandrao on 29-1-1970.
6. It was also contended by the defendan
