VILAS SHIVMURTI MUNDE – Appellant
Versus
SOMNATH SANTRAM KUMBHAR AND ORS – Respondent
SA 521/2016
1 SA521.2016
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 : 27TH NOVEMBER, 2018.
DATE OF PRONOUNCING THE JUDGMENT : 6TH 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,
2 SA521.2016
Jr. Divn., Kallam, Dist. Osmanabad. According to the appellantorig.
Plaintiff, there was partition between his grandfather 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
3 SA521.2016
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 dee
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