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.
