J.N.PATEL
Tukaram Motiram Shinde (Dead through L. Rs. ) & others – Appellant
Versus
Vishwanath Bhimrao Khandele – Respondent
Certainly. Based on the provided legal document, here are the key points:
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 (!) (!) (!) (!) .
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 (!) (!) .
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 (!) .
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 (!) (!) .
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 (!) .
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 (!) (!) .
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 (!) (!) .
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 (!) (!) .
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 (!) (!) (!) .
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 (!) (!) .
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 (!) .
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 (!) (!) .
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 Yav
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