Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 : Applicability of the Act – On facts, suit field comprising 3 acres and 20 guntas – Vide registered sale deed, 2 acres 20 guntas of the suit field purchased by first defendant from second defendant – Remaining portion left with second defendant – Later on, the co-defendant sold the said suit field to the appellant vide registered sale deed in the year 1979 – Possession disturbed by second defendant-first respondent – Suit for possession by the appellant-plaintiff – Trial court held that appellant had not purchased the suit field as claimed and executed only as a security for a money lending transaction; and that the transaction violated the provision under the Fragmentation Act – First appellate court decreed the suit for possession on the strength of title in favour of the appellant – In second appeal, the High Court restored the decree of dismissal of the suit by the trial court holding that the sale or transfer of one acre of land is sale of fragment, thus, void u/s. 9(1), and the plaintiff cannot seek possession on the basis of such saledeed – On appeal, held: On facts, the plaint averments did not disclose involvement of any such issue requiring a reference to a competent authority under the Fragmentation Act – Case attempted to be projected and proved by the second respondent is that in regard to the two sale deeds, they were never intended to be acted upon and in fact, they were never been acted upon – Furthermore, despite the lack of foundational facts attracting the applicability of the ‘Fragmentation Act’ and on the question of raising of any right or claim by way of counter-claims, it cannot be understood as to how the trial court and the High Court came to frame issues and consider such issue, that too, ignoring the statutory bar of jurisdiction to go into and decide the issues – Second defendant did not make out any case for attracting the provisions of the Fragmentation Act – High Court erred in setting aside the judgment and decree of the First Appellate Court decreeing the suit and in restoring the decree of dismissal of the suit of the trial court – Judgment passed by the High Court is set aside and that of the First Appellate Court is restored – ss. 8, 9, 31, 36 A, 36 B.
Code of Civil Procedure, 1908 : Ord. VIII r. 6 A – Counterclaim by defendant – When can be raised – Held: A defendant could not be permitted to raise counter-claim against co-defendant because by virtue of Ord. VIII r. 6A, it could be raised by defendant against the claim of the plaintiff – On facts, sole, vague averment in the written statement filed by the second defendant in the suit referring to the Fragmentation Act, which in no way could construe as a counter-claim capable of treating as a plaint and governed by the rules applicable to plaints in terms of Ord VIII r. 6 A and enabling the court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim – An inter-se dispute on the validity of the sale deed, if at all between the second and first defendants, could not have been considered in the subjectsuit, as it would amount to adjudication of right or a claim, by way of counter-claim by one defendant against his co-defendant.
Allowing the appeal, the Court
HELD: 1.1 It is not the object or purpose of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 to totally prohibit or prevent transfer of land within any notified ‘local area’, but it is only aimed at preventing the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof. [Para 18][191-E]
1.2 Though in a suit a defendant is entitled to raise alternative inconsistent plea he could not be permitted to raise pleas which are mutually destructive of each other and raising such pleas would only work out to his detriment. [Para 19][191G-H]
1.3 While entertaining the contentions founded on the Fragmentation Act raised by the second defendant, the trial court as also the High Court have not bestowed attention to the statutory bar of jurisdiction under Section 36A of the Act. [Para 20][192-A-B]
1.4 The case attempted to be projected and proved by the second respondent is that in regard to sale deed dated 04.07.1978 and the sale deed dated 21.04.1979 (Ext.128) they were never intended to be acted upon and in fact, they were never been acted upon. If that is accepted, then, there is absolutely no question of applicability of the provisions of ‘the Fragmentation Act’ as they would apply only in the eventuality of an actual transfer of land or partition of land subject to the satisfaction of other conditions. [Para 22][193-B-D]
1.5 A conjoint reading of Section 36A and 36B of the Fragmentation Act would reveal that when a suit is instituted in a Civil Court, the Court concerned has to consider if the suit involves any issue(s) which is/are required to be settled, decided or dealt with by any competent authority to settle, decide or dealt with, such issues under the said Act. If it does, then after staying the suit the said issue(s) is to be referred to such competent authority for determination. Apparently, no such consideration had been made by the trial court as also by the High Court. [Para 23][193-D-E]
1.6. The words ‘if any suit, instituted in Civil Court’ and ‘involves any issues’ employed in Section 36B of the Fragmentation Act would undoubtedly point to the fact that involvement or otherwise of such issues mentioned under the section in ‘the suit instituted in a Civil Court’ is the factor deciding the applicability of the procedures prescribed under Section 36B, of the Fragmentation Act. Therefore, the question whether such issue(s) falling under Section 36B of the Fragmentation Act is involved or not was to be decided with reference to the averments in the plaint. On their own the plaint averments did not disclose involvement of any such issue(s) requiring a reference to a competent authority under the Fragmentation Act. Since the issue is whether the suit involves such issue(s), we will refer to the written statement as well. The sole, vague averment in the written statement filed by the second defendant in the suit referring to the Fragmentation Act, which in no way could construe as a counter-claim capable of treating as a plaint and governed by the rules applicable to plaints in terms of Order VIII Rule 6 A, CPC and enabling the court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. That apart, the case projected and proved by the second defendant that Ext.128 sale deed and sale deed dated 04.07.1978 were never intended to be acted upon. Thus, going by his mutually destructive pleas as well, no case for attracting the provisions of ‘the Fragmentation Act’ was made out by the second defendant. [Para 24][194-A-F]
1.7 Despite the lack of foundational facts attracting the applicability of the ‘Fragmentation Act’ (in fact, there is no serious consideration of such aspects by the trial court and the High Court) and the position revealed from the said decisions and the provisions and on the question of raising of any right or claim by way of counter-claims, it cannot be understood as to how the trial court and the High Court came to frame issues and consider such issue(s), that too, ignoring the statutory bar of jurisdiction to go into and decide the issues. [Para 27][195-B-D]
1.8 A careful scanning of the impugned judgment would reveal that virtually, the High Court considered the validity of the sale deed dated 04.07.1978 executed by the second defendant in favour of the first defendant under ‘the Fragmentation Act’, without directly framing an issue precisely on the same and then, decided the validity of the sale deed dated 21.04.1979 executed by the second defendant in favour of the plaintiff. It is held that defendant could not be permitted to raise counter-claim against co-defendant because by virtue of Order VIII Rule 6A, CPC it could be raised by a defendant against the claim of the plaintiff. In the instant case, no such counter-claim, which can be treated as a plaint in terms of the said provision and thereby, enabling the court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim, was filed by the second defendant. That apart, indisputably, the second defendant did not dispute the execution of the registered sale deed dated 04.07.1978 by him in favour of the first defendant and in his written statement the second defendant had only stated that according to the provisions of the Fragmentation Act the plaintiff was not entitled to any relief. When that be so, legally how can the High Court hold the sale deed dated 04.07.1978 executed by the second defendant in favour of the first defendant, void under the provisions of the Fragmentation Act without precisely framing an issue and then, based on it, going on to consider the validity of Ext. 128 sale deed dated 21.04.1979 executed by the second defendant in favour of the plaintiff, even-after noting the finding of the First Appellate Court that as relates the sale of one acre of land under Ext.128 sale deed the second defendant did not have any grievance and then, observing, in tune with the same, that the second defendant did not dispute that he sold one acre of land to the plaintiff as per Ext.128 sale deed for the consideration of Rs. 3000/- and had shown readiness and willingness to deliver the possession of it to the plaintiff. To make matters worse, the High Court failed to consider the crucial issue whether the plaintiff is entitled to possession of the suit land on the strength of the registered Ext.128 sale deed executed by the defendants. [Para 30][197-A-G]
1.9 The decision of the High Court on the validity of the sale transaction covered under the sale deed dated 04.07.1978 executed by the second defendant in favour of the first defendant, in terms of the provisions under the Fragmentation Act (when that question was not legally available to be considered in the subject suit) and the virtual declaration of the said sale as void, are absolutely unsustainable. It is the product of erroneous assumption of jurisdiction and also erroneous and perverse appreciation of evidence. It being the foundation for holding the registered sale deed dated 21.04.1979 (Ext.128) as void under Sub-section (1) of Section 9 of the Fragmentation Act, it is unsustainable. [Para 31][197-H; 198-A-C]
1.10 As regards, the grievance of the second defendent with respect to the balance extent of 2 acres and 20 guntas involved in the transaction; in the context of the contentions raised by the second defendant viz., the first respondent in this appeal, what is relevant and crucial is not only the factum of registration of Ext.128 and its execution by the second defendant but also the admission of execution of sale deed dated 04.07.1978 by him in favour of the first defendant. True that the second defendant contended that it was executed as a collateral security for a money lending transaction. Evidently, the High Court did not frame the validity of the sale deed dated 04.07.1978 executed by the second defendant in favour of the first defendant as a question of law though the trial court also arrived at a finding on this issue without framing it as a specific issue. The indisputable fact is that the said sale deed dated 04.07.1978 was admittedly, executed and registered about nine (9) months prior to the execution and registration of Ext. 128 sale deed. Ext. 128 would reveal that it involves the entire extent of 3 acres 20 guntas in Survey No. 20/
2 of G village and the first defendant is also an executant of the same. The observation and finding of the High Court in the first limb of paragraph 24 of the impugned judgment that the second defendant did not dispute the sale of one acre of land to the plaintiff as per Ext. 128 for the consideration of Rs. 3000/- would indicate that the balance amount of Rs. 7000/- was the consideration for the balance extent of land covered under Ext. 128. Since the validity of the sale deed dated 04.07.1978 was not an issue/question that could be raised by the second defendant against the first defendant in the subject suit and was rightly, not raised as an issue, the first defendant not only did not dispute the sale of such extent to the plaintiff but admitted the joint execution of Ext. 128 and receipt of sale consideration, as incorporated in Ext. 128 and since the second defendant got no case that he had assailed the validity of the sale deed dated 04.07.1978 either before any competent authority or competent Civil Court this question needs no further elaboration. An inter-se dispute on the validity of the sale deed dated 04.07.1978, if at all between the second and first defendants, could not have been considered in the subject-suit, for the reasons already mentioned as it would amount to adjudication of right or a claim, by way of counter-claim by one defendant against his co-defendant. Finding on its voidness under the Fragmentation Act was already held as unsustainable. [Para 34][200-B-H; 201-A-B]
1.11 By virtue of Section 54, of the Transfer of Property Act and Section 17 of the Registration Act and since the immovable property was worth more than Rs. 100/- Ext.128 was reduced in writing and registered. The intention of the parties are also reflected specifically in Ext.128 and at the same, nothing reflecting a contraintention not to pass the title and ownership in present even impliedly therein. In other words, the need to take into consideration the surrounding circumstances and the conduct of parties in deciding the passing of title would arise only if the recitals in the document are indecisive and ambiguous. The oral evidence of the second defendant could not override the registered Ext. 128 sale deed, as held by the First Appellate Court in the facts, circumstances and evidence on record in this case. In such circumstances, no other question(s) need be considered. The High Court committed a serious error based on perverse appreciation of evidence, in setting aside the judgment and decree of the First Appellate Court decreeing the subject suit and in restoring the decree of dismissal of the suit of the trial court. [Para 35][201-E-H]
1.12 The judgment and final order in Second Appeal passed by the High Court restoring the decree of the Civil Judge is set aside. The judgment and decree of the Additional District Judge is restored. [Para 36][202-A-B]
Charanjit & Ors. v. State of Punjab & Anr. (2013) 11 SCC 163 : [2013] 10 SCR 688; Adambai Sulemanbhai Ajmeri & Ors. v. State of Gujarat (2014) 7 SCC 716 : [2014] 7 SCR 48; Jag Mohan Chawla and Anr. v. Dera Radha Swami Satsang & Ors. (1996) 4 SCC 699 :
[1996] 2 Suppl. SCR 509; Rohit Singh and Ors. v. State of Bihar (2006) 12 SCC 734 : [2006] 7 Suppl. SCR
278 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.