I have considered the submissions made by the learned Counsel for both sides I have also gone through the authorities cited by the learned Counsel for the respondent. In so far as the applicability of Section 8 of the Act is concerned, I am unable to accept the submissions made by the learned Counsel for the appellant on several counts. Firstly, perusal of the judgments and orders passed by both the courts below discloses that no specific arguments have been advanced on applicability of Section 8 of the Act. It is also pertinent to note that no specific issue about the applicability of Section 8 has been framed by the trial Court. In any event, the submissions made by the learned Counsel that the transaction in question is hit by Section 8 of the Act does not hold water in view of the fact that the appellant has not placed any material either before the lower courts or before this Court that Section 8 of the Act is applicable in the present case. A bare perusal of Section 8 of the Act makes it dear that the same applies to the land in local area and transfer or partition of any land in local area so as to create the fragmentation is barred. The learned Counsel for the appellant is unable to point out that the suit property was in any local area. Whether the suit property falls in local area is not a pure question of law and as such I am unable to agree with the submissions made by the learned Counsel for the appellant that since the applicability of Section 8 is a pure question of law the appellant is entitled to raise this question in the second appeal. Without any foundation being laid by the appellant, in my opinion, the appellant can not permitted to take shelter of Section 8 to defeat the claim of the respondent for getting the relief of specific performance. In any event, as rightly submitted by Mr. Gupta the learned Counsel for the appellant that the appellant has not placed any material to prove that the notification under Section 6 of the Act has been issued in respect of the said area, the reliance placed by the learned Counsel for the appellant on Section 8 of the Act is totally misplaced. Mr. Gupta is also right in contending that in any event Section 7 permits the transfer of fragmentation to contiguous owner of the contiguous survey number. In the absence of any specific pleadings by the present appellant that the agreement was hit by Section 8 of the Act, it is not possible to come to a finding that the findings given by both the courts below are perverse.
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Bombay High Court
Namdeo Shamrao Waghmare vs Ramdas Shripat Waghmare on 30 September, 2004
Equivalent citations: 2005 (2) BomCR 829
JUDGE: Lavande A.P., J.
1. Heard Mr. S.R. Deshpande, the learned Counsel for the appellant and Mr. A.V. Gupta, the learned Counsel for the respondent.
2. By this appeal, the appellant takes exception to the judgment, order and Decree passed by the Additional District Judge, Buldhana dated 11-4-1988 in Regular Civil Appeal No. 85/85 dismissing the appeal filed 'by the present appellant against the judgment, order and decree dated 30-1-1985 passed by the Civil Judge, Jr. Dn., Chilkhli in Regular Civil Suit No. 224 of 1983.
3. Briefly, the facts which are relevant for disposal of the present appeal are as follows:
The respondent herein who is the original plaintiff filed the above mentioned suit against the appellant herein who is the original defendant for specific performance of contract and for possession. The respondent claims specific performance of contract in respect of the property bearing No. 7/1, admeasuring about 1 acre and 10 gunthas owned and possessed by the present appellant. According to the plaintiff, there was an agreement of sale in respect of the suit property for a consideration of Rs. 3,000/-. On the date of execution of the agreement of sale, an amount of Rs. 1500/- was paid and the balance amount was to be paid at the time of execution of the sale-deed. The possession of the suit property was to be handed over at the time of execution of the sale-deed and the date fixed for execution of the sale-deed was 25-2-1981. The agreement of sale entered into between the plaintiff and defendant on 14-7-1980. Upon refusal by the defendant to execute the sale-deed and to hand over the possession, the plaintiff filed the above mentioned suit for specific performance of contract and possession. The defendant resisted the claim and filed written statement. The defence of the defendant was that the document was executed as a security for the loan amount of Rs. 1000/-obtained by him from the plaintiff. Upon the pleadings of the parties, the following issues were framed.
1. Does the plaintiff prove that the defendant had contracted to sale to him the suit land for consideration of Rs. 3000/-?
2. Whether the defendant prove that he had executed the said Isar-chitthi as security for the loan of Rs. 1000/- obtained by him from the plaintiff?
3. Does the defendant prove the repayment of alleged loan?
4. Whether plaintiff is/was ready and willing to perform his part of the contract?
5. Whether the plaintiff is entitled for decree of specific performance of his part of contract?
6. What relief and costs?
4. The learned trial Court answered Issues 1, 4, 5 in favour of the plaintiff and Issues 2 and 3 against the defendant. Consequently, the trial Court decreed the suit and granted specific performance of the contract and further directed the defendant to hand over the possession of the suit property to the plaintiff.
5. Aggrieved by the Judgment, Order and Decree passed by the trial Court, the appellant herein preferred appeal. The Appellate Court framed the following point for determination.
Has the appellant shown that the lower Court has erroneously passed a decree against him?"
The Appellate Court after hearing both sides dismissed the appeal and held that the respondent had proved that there was an agreement of sale in respect of the suit property and further that the plaintiff was all the time ready and willing to perform his part of the contract. Concurring with the judgment, order and decree passed by the trial Court, the Appellate Court dismissed the appeal. Being aggrieved by the judgment, order and decree passed by both the courts below the appellant has preferred the present second appeal.
6. The appeal was admitted on 28-6-1988 Ground No. 10 in the memo of appeal was formulated as a substantial question of law Ground No. 10 of the Memo of Appeal reads as under:
That both the lower courts ought to have held that the land which is agreed to be sold is fragment and hence the specific performance of the agreement of sale is in breach of Sections 8 and 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 and hence ought not have exercised the discretion in favour of the plaintiff?
7. After bearing the learned Counsel for both sides the substantial question of law was re formulated and it is as under;
Whether both the lower courts had erred in law in not appreciating that the property agreed to be sold is a fragment and as such the specific performance of agreement of sale is in breach of Sections 8 and 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947?"
8. I have heard Mr. S.R. Deshpande, the learned Counsel for the appellant and Mr. A.V. Gupta, the learned Counsel for the respondent. According to Mr. Deshpande, there was contemporaneous agreement entered into between the plaintiff and the defendant at the time of execution of agreement dated 14-7-1980 and the parties never intended to act upon the agreement dated 14-7-1980. According to Mr. Deshpande, the defendant had received an amount of Rs. 1000/- by way loan from the plaintiff and as such the agreement was executed as security for the loan of Rs. 1000/- obtained by the defendant from the plaintiff. Secondly, Mr. Deshpande submitted that the land agreed to be sold admeasured 1 acre and 10 gunthas and as such the same is barred under Section 8 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as "the Act" for short) Mr. Deshpande, invited my attention to Section 8 of the Act. Section 8 of the Act reads as under:
"No land in local area shall be transferred or partitioned so as to create fragmentation."
9. Mr. Deshpande, fairly conceded that in the present case Section 31 of the Act is not at all applicable since Section 31 of the Act is applicable only in respect of the holding allotted under this Act and since it is not a case of either party that the land in question is allotted under the Act, the question of application of Section 31 of the Act does not arise at all. According to Mr. Deshpande, the arguments were advanced before both the Courts below in so far as the applicability of Section 8 is concerned. According to Mr. Deshpande both the courts below have not considered this aspect and, therefore, the decrees passed by both the courts below are vitiated. Mr. Deshpande submitted that the appellant has only 1/5th share in the suit property and if the decree for specific performance is granted, the same would create a fragment which is prohibited in terms of Section 8 of the Act. According to Mr. Deshpande, the findings given by both the courts below are perverse and, therefore, it is just and proper that this Court set asides the judgments, orders and decrees passed by both the courts below.
10. Per contra, Mr. A.V. Gupta, the learned Counsel appearing for the respondent submitted that there are concurrent findings of fact recorded by both the courts below against the appellant. The learned Counsel further submitted that both the courts below have come to the conclusion that the appellant had executed an agreement of sale in favour of the respondent in respect of the suit property Mr. A.V. Gupta submitted that Section 8 of the Act is clearly not attracted the present case. He further submitted that no foundation has been led by the appellant herein before both the courts below for attracting Section 8 of the Act and further no arguments were advanced in so far as the applicability of Section 8 of the Act is concerned before both the courts below.
11. Without prejudice to this submission, Mr. A.V. Gupta relying upon Sections 6 and 7 of the Act submitted that no evidence has been led by the appellant to prove that the notification under Section 6 has been issued covering the property in question and, therefore, the appellant is not entitled to invoke Section 8 which prohibits creation of fragmentation in any local area in any event the learned Counsel submitted that Section 7 permits transfer of any fragmentation to the owner of contiguous survey number holder and according to Mr. Gupta, the respondent is the owner of the property which is contiguous which is agreed to be sold by the present appellant. Mr. Gupta relied upon two judgments of this Court reported in 1) 1980 Mh.L.J. 547, Putalabai Lakhu Paar and Ors. v. Shiva Dhondi Pawar and Ors., and 2) 1995(2) Bom.C.R. 544 : 1995(1) Mh.L.J. 816, Malla Tatya Suryavanshi v. Shripati Rama Gondhali and Ors.
12. I have considered the submissions made by the learned Counsel for both sides I have also gone through the authorities cited by the learned Counsel for the respondent. In so far as the applicability of Section 8 of the Act is concerned, I am unable to accept the submissions made by the learned Counsel for the appellant on several counts. Firstly, perusal of the judgments and orders passed by both the courts below discloses that no specific arguments have been advanced on applicability of Section 8 of the Act. It is also pertinent to note that no specific issue about the applicability of Section 8 has been framed by the trial Court. In any event, the submissions made by the learned Counsel that the transaction in question is hit by Section 8 of the Act does not hold water in view of the fact that the appellant has not placed any material either before the lower courts or before this Court that Section 8 of the Act is applicable in the present case. A bare perusal of Section 8 of the Act makes it dear that the same applies to the land in local area and transfer or partition of any land in local area so as to create the fragmentation is barred. The learned Counsel for the appellant is unable to point out that the suit property was in any local area. Whether the suit property falls in local area is not a pure question of law and as such I am unable to agree with the submissions made by the learned Counsel for the appellant that since the applicability of Section 8 is a pure question of law the appellant is entitled to raise this question in the second appeal. Without any foundation being laid by the appellant, in my opinion, the appellant can not permitted to take shelter of Section 8 to defeat the claim of the respondent for getting the relief of specific performance. In any event, as rightly submitted by Mr. Gupta the learned Counsel for the appellant that the appellant has not placed any material to prove that the notification under Section 6 of the Act has been issued in respect of the said area, the reliance placed by the learned Counsel for the appellant on Section 8 of the Act is totally misplaced. Mr. Gupta is also right in contending that in any event Section 7 permits the transfer of fragmentation to contiguous owner of the contiguous survey number. In the absence of any specific pleadings by the present appellant that the agreement was hit by Section 8 of the Act, it is not possible to come to a finding that the findings given by both the courts below are perverse. Mr. Gupta has invited my attention to the cross-examination of the appellant himself who has clearly admitted in his cross-examination that he is the exclusive owner of the suit property.
13. Mr. Deshpande, the learned Counsel argued that having regard to the evidence led by and on behalf on the appellant, the findings given by both the courts below are perverse. I have gone through the impugned judgment and also evidence led by both parties. Upon perusal of the same, it cannot be said that the findings given by both the courts below are perverse warranting interference by this Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. In my opinion, none of the findings given by both the courts below are based on evidence on record and the same cannot be termed as perverse warranting interference by this Court. I do not find any infirmity in the judgments, orders and decrees passed by both the courts below.
14. In the result, therefore, I do not find any merit in the present appeal. Accordingly, the appeal is dismissed. Parties are directed to bear their own costs. Interim order passed by this Court stands vacated. Decree be drawn accordingly.
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