2008(5) ALL MR 516
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

J.H. BHATIA, J.

Anandrao Shripati Patil & Anr.Vs.Jeetendra Laxman Patil & Anr.

Second Appeal No.324 of 1991

30th July, 2008

Petitioner Counsel: Mr. BHUSHAN A. WALUMBE
Respondent Counsel: Mr. R. A. THORAT

Bombay Prevention of Fragmentation and Consolidation of Holdings Act (1947), Ss.8, 9 - Scope and applicability of - Prohibition against transfer or partition of any land which would create a fragment - Sale deed - Property sold was eight anna share in undivided property - No fragment created - S.8 cannot be invoked - If S.8 cannot be invoked, S.9(1) which declares such transfer or partition contrary to the provisions of the Act as void also cannot be invoked.(Para 10)

JUDGMENT

JUDGMENT :- The original plaintiffs have preferred the Second Appeal against dismissal of their suit by the learned District Judge, Sangli, by allowing Civil Appeal No.147 of 1986 filed by the original defendant No.1 wherein he had challenged the decree passed by the learned Civil Judge, Junior Division, Islampur in favour of the plaintiffs in Civil Suit No.304 of 1980.

2. To state in brief, the defendant No.2 - Vilas Tukaram Jadhav was the owner of land survey No.1002/2 admeasuring 81 Ares. To the eastern side of that land was the land Survey No.1003 admeasuring 58 Ares. Both the lands were consolidated and Gat No.2351 was formed with area of one hectare and 21 Ares. Out of this, western side 81 Ares land, which was bearing original survey No.102/2, was mortgaged by the defendant No.2 in favour of defendant No.1 on 30.1.1973 for a loan of Rs.3,500/-. According to the plaintiffs, on 11.11.1974, the defendant No.1 agreed to sell half share from survey No.1002/2 in favour of the plaintiffs for consideration of Rs.9,000/- and he received an amount of Rs.1,300/- as earnest money. On 20.8.1975, the agreement for sale was revised and further amount of Rs.2,850/- was received by the defendant No.2 from the plaintiff No.1. On 18.6.1977, the Assistant Consolidation Officer gave a certificate that the said half portion from Survey No.1002/2 could be sold. On 1.10.1977, the defendant No.2 executed a registered sale deed in favour of the plaintiffs for consideration of Rs.12,000/- in respect of the joint half share in the land Survey No.1002/2. By the same document, he also transferred the right of redemption of the said property in favour of the plaintiffs. The plaintiffs, agreed to repay the mortgage money i.e. Rs.3,500/- to the defendant No.1 for getting the mortgage redeemed. That amount was adjusted in the consideration amount of Rs.12,000/-. The plaintiffs contended that in view of the said sale-deed, they are owners of half share in the land and as per the said document, they are also entitled to redeem whole of the land. Therefore, they filed the suit for redemption of mortgage and also sought possession of the land.

3. The suit was contested by the defendant No.1 by written statement Exhibit 18. He raised several objections about the redemption of mortgage in view of the fact that land Survey No.1002/2 was already consolidated in Gat No.2351. He also denied that any agreement for sale had taken place between the plaintiff and defendant No.1 on 11.11.1974 and 20.8.1975. He also denied that defendant No.2 had executed any sale deed in favour of the plaintiffs in respect of half share in the land Survey No.1002/2 with right of redemption of mortgage. He also contended that on 15.6.1975, defendant No.2 had agreed to sell the said land to him for consideration of Rs.25,000/-. He had paid an advance amount of Rs.15,000/- to the defendant No.2. The mortgage money was also adjusted towards the price of the land and thus the mortgage has extinguished. According to him, on 3.12.1977, the defendant No.2 had sold the land Survey No.1002/2 to him under a registered sale-deed and thus, the defendant No.1 is the exclusive owner of the property and therefore the suit for redemption of mortgage and possession is not tenable and is liable to be dismissed.

4. Several issues were framed by the trial Court. After hearing evidence of both sides, the trial Court came to conclusion that the mortgage had been redeemed by virtue of agreement for sale and by execution of sale deed by defendant No.2 in name of defendant No.1 as defendant No.1 had adjusted the mortgage money of Rs.3,500/- against the consideration amount for sale of the land. The trial Court also accepted the plea of the plaintiffs that half share in the land was sold to them with right of redemption. However as the mortgage was already redeemed, the trial Court passed a decree in favour of the plaintiffs directing that the amount of Rs.3,500/- which was already deposited by the plaintiffs to be paid to the defendant No.1 and that the defendant No.1 shall deliver all the documents of mortgage to plaintiffs and, if required, shall execute necessary documents for reconveyance of the property free from the mortgage in favour of the plaintiffs and to put the plaintiffs in possession.

5. Against that Judgment and Decree, the Defendant No.1 preferred Civil Appeal No.147 of 1986. The learned District Judge, Sangli, came to conclusion that the plaintiffs had purchased half share in Survey No.1002/2 from the defendant No.2 under a registered sale-deed dated 1.10.1977 on the basis of the earlier agreements for sale dated 11.11.1974 and 20.8.1975 and under the said sale deed, the right of redemption of mortgage was also assigned by the defendant no.2 to the plaintiffs. The appellate Court came to conclusion that defendant no.1 had got sale-deed executed in his favour on 3.12.1977, but before that, the defendant no.2 had already sold the half share in the land to the plaintiffs and therefore, he could dispose of only remaining half share out of Survey No.1002/2 in favour of the defendant No.1. The learned appellate Court also held that as per the terms of the sale deed executed by the defendant no.2 in favour of defendant No.1, the defendant No.1 had received the mortgage money which was adjusted against consideration of the loan and therefore the mortgage was already redeemed. The learned appellate Court noted that the plaintiffs had retained an amount of Rs.3,500/- being the mortgage money out of the consideration amount of Rs.12,000/-, but the defendant No.1 could not claim that amount because of the above adjustment in the sale transaction. According to the appellate Court, the defendant No.2 could to (sic) recover that amount of Rs.3,500/- from the plaintiffs. Having come to this conclusion, the appellate Court also came to conclusion that the plaintiff had become owner of half share in the land Survey No.1002/2 and the plaintiff No.1 is entitled to recover possession of half portion of the land from the defendant No.1 on the basis of the sale-deed. After having come to this conclusion, the appellate Court observed that if possession of half portion of the suit land is given to the plaintiffs, it would create fragment and creation of such fragment will be contrary to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short "the Fragmentation Act") and due to that the sale will be invalid. The learned appellate Court also noted that as per the Fragmentation Act, standard area for the Sangli District with respect to the dry land is 2 acres and for the irrigated land 6 acres. As the plaintiff No.1 would be entitled to half share in the land admeasuring 2 acres and 2 gunthas, he can claim possession of only 1 acre one guntha, which will be a fragment. In view of this, the learned appellate Court noted that in view of the provisions of Section 9 of the Fragmentation Act, the said sale-deed is void and, therefore, the plaintiffs are not entitled to recover possession. Because of this legal obstacle, the learned appellate Court allowed the Appeal and set aside the decree passed by the trial Court. In the above circumstances, the plaintiffs have filed the Second Appeal before this Court.

6. The Appeal was admitted by order dated 18.7.1991 observing that substantial questions of law are made out in ground Nos.8 to 10. Grounds Nos.8 to 10 in the Appeal Memo read as follows :-

"8. Whether the sale deed in favour of the Appellants in respect of the suit property is hit by the provisions of Section 9 of Prevention of Fragmentation and Consolidation of Holding Act ?

9. Whether in the facts and circumstances of the present case, Section 9 of the Prevention of Fragmentation and Consolidation of Holding Act is applicable?

10. Whether the lower Appellate Court was justified in holding that the sale deed in favour of the Appellants created fragment and the same is violative of section 9 of Prevention of Fragmentation and Consolidation of Holding act in view of the facts and circumstances that the adjoining land gat No.1002/1 belongs to the Appellants and therefore, no question of fragment arises ?"

7. Heard learned Counsel for the parties.

8. In view of the above grounds, the limited point before this Court to be considered is whether the sale deed in favour of the plaintiffs creates fragment and whether the sale deed is void under Section 9 of the Fragmentation Act. Sections 8, 8-AA and Sec.9 of the Fragmentation Act are relevant for the purpose of deciding the question. Sections 8 and 9 read as follows :-

"8. No land in any local area shall be transferred or partitioned so as to create a fragment."

"9. (1) The transfer or partition of any land contrary to the provisions of this Act shall be void.

(2) The owner of any land so transferred or partitioned shall be liable to pay such fine not exceeding Rs.250 as the Collector may subject to the general orders of the State Government, direct. Such fine shall be recoverable as an arrear of land revenue.

(3) Any person unauthorizedly occupying or wrongfully in possession of, any land, the transfer or partition of which, either by the act of parties or by the operation of law, is void under the provisions of this Act, may be summarily evicted by the Collector."

9. On reading sections 8 and 9, it becomes clear that there is a clear prohibition against transfer or partition of any land which would create a fragment and Section 9 provides that the transfer or partition of any land contrary to the provisions of the Act shall be void. Besides declaring that the transfer or partition would be void it also provides for penalty and summary eviction from the possession of the land. The learned appellate Court held that in the present case, the sale deed is void under Sec.9 because under the sale deed, the plaintiffs purchased only half share of the land i.e. one acre and one guntha only which would create a fragment.

10. There is no dispute that in the Consolidation Scheme for Sangli District, the standard area under the Fragmentation Act was declared to be 2 acres for Jirayat or dry land and 1/2 acre for Bagayat or irrigated land. The learned appellate Court noted that the suit land is jirayat land and therefore, the standard area would be 2 acres and if less than 2 acres land is sold, it would create a fragment. However, on careful perusal of the sale deed dated 1.10.77, Ex.37 in favour of the plaintiffs, it appears that no specific portion of the land was sold to the plaintiff. The description of the property sold to the plaintiffs clearly shows that 8 anna share in the undivided property being survey No.1002/2 admeasuring 81 Ares was sold to him. Besides this, they were also given right of redemption. For the purpose of decision of this Appeal, it is not necessary now to consider the right of redemption because of findings of the appellate court. The sale deed does not provide for partition of the land nor creates any fragment of the land. Under the sale deed, the plaintiffs purchased only undivided 8 anna share in the suit property. Section 8 prohibits transfer or partition of the land so as to create a fragment. If under the sale deed specific portion from the said land would be sold, it would create a fragment. But as noted above, the sale deed does not cause any partition nor provides for transfer at a specific portion of land so as to create a fragment. The plaintiffs did not get any specific portion from the land so as to create a fragment. They purchased 8 anna joint share in the property. If the parties so desired, they could continue to be in joint possession of the land with 50% share each without partition and without creating a fragment. In view of these circumstances, Section 8 cannot be invoked. If Section 8 cannot be invoked, Section 9(1) which declares such transfer or partition contrary to the provisions of the Act as void also cannot be invoked.

11. In fact, taking into consideration the terms of the sale deed under which the plaintiffs purchased half undivided share in the land, Section 8-AA of the Fragmentation Act could be applicable. The relevant part of Section 8-AA reads as under :-

"8-AA. (1) Where, by transfer, decree, succession or otherwise, two or more persons are entitled to shares in an undivided agricultural land in any local area for which standard areas have been fixed, and the land has to be partitioned among them, such partition shall be effected so as not to create a fragment.

(2) Where such partition is made by the Court or the Collector, the following procedure shall be adopted :-

(a) If, in effecting a partition among several co-shares, it is found that a co-share is entitled to a specific share in the land and cannot be given that share without creating a fragment, he shall be compensated in money for that share. The amount of compensation shall be determined so far as practicable in accordance with the provisions of section 23 of the Land Acquisition Act, 1894..."

In view of this, where a transfer, decree, succession or otherwise, two or more persons are entitled to share in an undivided agricultural land in any local area, for which standard area has been fixed and land has to be partitioned amongst them, such partition would be effected so as not to create a fragment. In the present case, half undivided share in the land Survey No.1002/2 has been transferred to the plaintiffs and as held by the appellate Court, the defendant No.1 has also purchased half share in the property. Thus, by transfer of the property by defendant No.2 in favour of the plaintiffs and defendant no.1, the plaintiffs and defendant No.1 are now entitled to share in the undivided agricultural land. For the purpose of giving specific shares to them, as per sub-section (1) of Section 8-AA, partition shall be so effected as not to create any fragment. As the land was 2 acres and 1 guntha, if it is divided equally, it may create a fragment as held by the appellate Court. In that case, the procedure laid down in sub-section 2(a) of Section 8-AA has to be followed. It requires that if in effecting partition amongst several co-sharers it is found that a co-sharer is entitled to a specific share in the land and cannot be given that share without creating a fragment, he shall be compensated in money for that share and this calculation shall be determined as far as practicable in accordance with the provisions of Section 23 of the Land Acquisition Act. In view of this legal position, if it is found that the partition of land Survey No.1002/2 would create a fragment, the Collector may follow the procedure laid down in sub-section (2) of Sec.8-AA. It appears that the learned appellate Court did not carefully peruse the terms of the sale deed in favour of the plaintiffs and also he did not notice the provisions of Section 8-AA before coming to the conclusion that the sale in favour of the plaintiff is void under Section 9 of the Fragmentation Act. Had the learned appellate Court considered these provisions, he could not dismiss the suit, particularly after having come to the conclusion that the plaintiffs are entitled to half share in the land by virtue of the sale deed in their favour. In fact, in the given circumstances, under the provisions of Section 8-AA, the Court could direct that the plaintiffs be put in possession of their share and for that purpose, the matter could be referred to the Collector to put the parties in possession of their shares by following the procedure under Section 8-AA and if the partition of the land would create a fragment, he could compensate either of the parties by determining the value of land so far as practicable in accordance with the provisions of Section 23 of the Land Acquisition Act.

12. It may be noted that as per the contention of the plaintiffs the suit land Survey No.1002/2 is not jirayat land, but irrigated land. In their evidence, the plaintiff deposed that the land was being irrigated throughout the year with water from a well and from the Krishna Lift Irrigation Facility, but that Scheme is a Co-operative Scheme and that was available for 2 years prior to recording of their evidence in January, 1986, while the suit was filed in 1980. It means that irrigation facility from Krishna Lift Irrigation Facility was not available when the suit was filed. In the consolidation statement of the land Gat No.2351 - Ex.6, the said land is shown to be Jirayat or dry land. The said Gat includes the survey No.1002/2 as stated above. This land is clearly shown as Jirayat land and not as Bagayat in the consolidation statement.

13. The learned Counsel for the plaintiffs/appellants contended that if there is a facility of perennial irrigation even by well, that will be sufficient to treat the land as Bagayat land. However, he could not produce any material to support this contention. I find that under Section 6-A of the Bombay Tenancy and Agricultural Lands Act, "irrigated land" is defined thus :-

"6A(a) irrigated land, whether perennially or seasonally irrigated, shall not include land irrigated by sources other than canals or bundharas within the meaning of the Bombay Irrigation Act, 1879, or lift irrigation system constructed or maintained by the State Government;"

The learned Counsel could not point out the definition of "irrigated land" either in the Maharashtra Land Revenue Code or in the Fragmentation Act. Therefore, going by the definition of irrigated land under Section 6-A of the Bombay Tenancy and Agricultural Lands Act, the suit land could not be treated as irrigated. However, the learned Counsel for the plaintiffs also pointed out that before execution of the sale deed, the defendant no.2 had obtained a certificate from the Assistant Consolidation Officer, Sangli, which clearly revealed that defendant No.2 wanted to sell half share from Survey No.1002/2 admeasuring 81 Ares and the said Consolidation Officer had certified that the said land being Bagayat and being adjoining to the land of the purchaser, the provisions of Sections 7 and 8 of the Fragmentation Act would not be applicable.

14. P.W.1 - Anandrao had deposed before the trial Court that he had obtained such a certificate. It maybe noted that the certificate shown by the learned Counsel for the plaintiffs does not appear to have been exhibited before the trial Court. Anyhow, this question can be left open for decision by the Collector while effecting the partition while executing the decree. If he finds that the land is Bagayat and does not create a fragment or if he finds the suit land being adjoining to another land of the plaintiffs on one side and another land of the defendant No.1 on the other side and thereby partition would not create fragment he may cause partition. But if he finds that it would create a fragment, then he may follow the procedure laid down in Section 8-AA of Fragmentation Act.

15. Even though the defendant NO.1 has not filed any appeal or cross-objection, the learned Counsel for defendant no.1 assailed the findings of the appellate Court in respect of sale deed in favour of the defendant No.1, whereby the appellate Court held that the defendant No.1 could purchase only half share in the land and not more than that because already half of the property was sold to the plaintiffs. After going through the oral and documentary evidence, I find no substance in the contention of the learned Counsel for the defendant No.1.

16. For the aforesaid reasons, the Appeal is allowed. As the plaintiffs are found entitled to undivided half share in the land Survey No.1002/2 admeasuring 81 Ares, they may be put in possession of the same, if necessary by effecting partition. For the purpose of putting the plaintiffs in possession of half share in the land, the matter shall be referred to the Collector, who shall follow the procedure laid down in the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 for this purpose.

17. As the defendant No.1 is in unauthorised possession of half share in the suit land since December, 1977, when the mortgage was redeemed according to his own contention and admission, after the plaintiffs are put in possession, the trial Court shall hold enquiry under Order 20, Rule 12 of the C.P.C. for determining the mesne profits.

18. The defendant No.2 shall be entitled to withdraw the amount of Rs.3,500/- deposited by the plaintiff before the trial Court with interest, if any.

19. At this stage, Mr. Thorat, the learned Counsel for the defendant/respondent No.1 makes a request to stay the operation of this Judgment and Order for a period of six weeks. As the defendant/respondent No.1 is admittedly in possession, the stay is granted for a period of six weeks from this day.

Appeal allowed.