IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD.

SECOND APPEAL NO. 521 OF 2016 Vilas S/o. Shivmurti Munde Age : 57 years, Occu. Agriculture, R/o. Wadgaon (Jahagir), Tq. Kallam, Dist. Osmanabad. ….Appellant (Orig. Plaintiff)

Versus

1. Somnath S/o. Santram Kumbhar Age : 57 years, Occu. Service, R/o. Yedshi, Tq. & Dist. Osmanabad.

2. Sou. Nilawatibai W/o. Bhagwanrao Barkul, Age : 63 years, Occu. Household, R/o. Yermala, Tq. Kalla, Dist. Osmanabad.

3. Sou. Malanbai W/o. Bhimrao Magar, Age : 62 years, Occu. Household, R/o. At Waruda, Post Upla (Makdache), Tq. & Dist. Osmanabad. Respondents...

(Orig. Defendants)

..........

Mr Sanjay A. Wakure, Advocate for the appellant Mr J. R. Patil, Advocate for respondent No. 1 Mr A. B. Tele, Advocate for respondent Nos. 2 and 3 .............

CORAM : A. M. DHAVALE, JJ.

DATE OF RESERVING THE JUDGMENT : 27^TH NOVEMBER, 2018. DATE OF PRONOUNCING THE JUDGMENT : 6^TH DECEMBER, 2018.

JUDGMENT :-

1. This is an appeal by the original plaintiff.

2. The appellants had filed Spl. Civil Suit No. 67/1996 later on numbered as R.C.S. No. 517/2000 in the court of Jt. Civil Judge, Jr. Divn., Kallam, Dist. Osmanabad. According to the appellant-orig. Plaintiff, there was partition between his grand-father Krishna and his brother Devidas. Krishna's share was inherited by Tulshiram, Shivmurti, Manohar and Manik. Share of Devidas was inherited by his two daughters Malanbai and Nilawatibai, who are defendants No. 1 and 2. Tulshiram had sold his share to one Vishwas Shivajirao Patil. Said share was subsequently purchased by plaintiff -Vilas. The said share was adjacent to the share of Devidas. Defendants no. 1 and 2 executed two sale deeds dt. 04.05.1995, whereby a) Gat No. 121, admeasuring about 2 H. 20 R., assessed at Rs. 6 = 75 b) Gat No. 28, admeasuring about 1 H. 8 R., assesed at Rs.3=00 and c) Gat No. 130, admeasuring about 1 H. 37 R. assessed at Rs. 4=27. were sold to defendant No.3. As per plaint, on 22.11.1978, Consolidation Scheme was implemented in village Wadgaon (Jahagir). The lands sold by defendants No. 1 and 2 were fragments in terms of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as 'Fragmentation Act'). Sale thereof was banned except to the owner of contiguous land. Still, defendants No. 1 and 2 with ulterior motive, sold the suit land to defendant No. 3 and thereby preferential right of the plaintiff was infringed. Besides, defendant No. 3 was not an agriculturist and was not eligible to purchase the land. Defendant No. 3 contested the suit. He denied the contents. He also denied that, lands sold were fragments. He also contended that the entire lands inherited by defendants No. 1 and 2 were sold and therefore there was no bar to the sale. They denied that the plaintiff was having preferential right to purchase the land. Defendants No. 1 and 2 denied that there was any consolidation of holdings or fresh allotments of land. According to them, their old land bearing survey numbers were simply converted into gut numbers (block number). They denied the plaintiff's right of preemption. The learned Civil Judge framed the issues and held that the sales were hit by Section 7(1) of the Fragmentation Act. He held that, the plaintiff had preferential right. He partly decreed the suit in respect of sale of 54R. land from Gut No. 28 and 69R. land from Gut No. 130. The sale deeds in respect of those sales were declared null and void. Accepting the plaintiff's case of preferential right, the Collector was directed to fix the compensation. The suit with respect to land of 1H

12R. from Gut No. 21, was dismissed.

3. Aggrieved defendants preferred RCA No. 59/2009. The ld. Principal District Judge, Osmanabad framed points for determination as per Section 41 Rule 31 and held that, as the entire lands were sold, as per Section 31(3), the bar under Fragmentation Act was not attracted. He allowed the appeal and set aside the judgment and dismissed the suit.

4. Heard