[1.0] Leave to transpose the appellant No.2 herein as respondent No.12 as he was not the appellant before the lower Appellate Court. Registry is directed to amend the cause title of the main Second Appeal accordingly.
[2.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellant herein - original defendant No.5 to quash and set aside the impugned judgment and decree dated 30.09.1999 passed by the learned 7th Joint Civil Judge (S.D.), Nadiad in Regular Civil Suit No.563 of 1990 by which the learned trial Court has decreed the said suit in favour of respondent No.1 herein - original plaintiff granting the declaration and permanent injunction as prayed for as well as the impugned judgment and order dated 13.05.2009 passed by the learned 3rd Additional District Judge, Kheda @ Nadiad in Regular Civil Appeal No.8 of 2000 by which the learned Appellate Court has dismissed the said Appeal preferred by the appellant herein - original defendant No.5 confirming the judgment and decree passed by the learned trial Court.
[3.0] That respondent No.1 herein - original plaintiff instituted Regular Civil Suit No.563 of 1990 in the Court of learned Civil Judge (S.D.), Nadiad against the appellant herein - original defendant No.5 and others for a declaration that the said sale deed by original defendant No.4 in favour of the appellant herein - original defendant No.5 is illegal and not binding to him and is void as the same is in breach of provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as "Fragmentation Act"). That it was the case on behalf of the plaintiff that the suit property was ancestral property and therefore, defendant No.4 has no right to execute the sale deed alone. It was also the case on behalf of the plaintiff that even otherwise the sale is in breach of provisions of the Fragmentation Act.
[3.1] That the suit was resisted by the original defendant No.1 only by filing written statement at Exh.65. That the learned trial Court framed issues. As the dispute was whether the sale transaction is in breach of provisions of the Fragmentation Act or not and the same was required to be decided by competent authority under the Fragmentation Act, the said issue was referred to competent authority under the Fragmentation Act and the suit was stayed. It appears that thereafter the competent authority held that the sale transaction executed in favour of appellant herein - original defendant No.5 is in breach of provisions of the Fragmentation Act and the issue was accordingly answered to the learned trial Court. That on appreciation of evidence the learned trial Court held that the suit property is the ancestral undivided property. The learned trial Court also held considering the order passed by the Mamlatdar & Deputy Collector that the sale deed executed by original defendant No.4 in favour of original defendant No.5 (appellant herein) is illegal and void under Section 9(1) of the Fragmentation Act and consequently the learned trial Court decreed the suit and granted the declaration and permanent injunction as prayed for.
[3.2] Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court passed in Regular Civil Suit No.563 of 1999 in decreeing the same, appellant herein - original defendant No.5 only preferred Regular Civil Appeal No.8 of 2000 before the learned District Court, Kheda, at Nadiad and the learned lower Appellate Court - learned 3rd Additional District Judge, Kheda, at Nadiad by impugned judgment and order has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court.
[3.3] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below, the appellant herein - original defendant No.5 has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure, 1908.
[4.0] Shri P.S. Champaneri, learned advocate appearing on behalf of the appellant has made only one submission that the Letters Patent Appeal arising out of the order passed by the Mamlatdar declaring that the sale in favour of the appellant is in breach of provisions of the Fragmentation Act is pending and therefore, unless and until the said dispute is finalized, the sale in favour of the appellant cannot be declared as illegal. No other submissions have been made.
[5.0] However, it is required to be noted that as such the order passed by the Mamlatdar declaring the sale transaction in favour of the appellant as illegal and in breach of provisions of the Fragmentation Act has been confirmed upto the High Court and as such there is no stay in the Letters Patent Appeal. It appears that even no notices have been served upon the concerned respondents in the Letters Patent Appeal. Even otherwise it is required to be noted that at the relevant time when the learned trial Court passed the decree, no further appeal was pending. The Mamlatdar & Deputy Collector answered the reference to the learned Civil Court and thereafter, considering the same, the learned trial Court has decreed the suit which has been confirmed by the learned Appellate Court. Under the circumstances, it cannot be said that both the Courts below have committed any error and/or illegality in decreeing the suit and granting declaration and permanent injunction as prayed for in favour of the plaintiff.
[4.2] Even otherwise it is required to be noted that even the learned trial Court has specifically held that the suit property was ancestral and undivided family property and therefore, original defendant No.4 alone could not have executed the sale deed. The said finding is not challenged. Even otherwise it is also required to be noted so far as the appellant - original defendant No.5 is concerned, he never contested the suit as the written statement was filed by original defendant No.1 only and neither the original defendant No.4 nor original defendant No.5 filed the written statement.
[4.3] In any case, as stated herein above, no illegality has been committed by the learned trial Court decreeing the suit which is rightly confirmed by the learned Appellate Court. As such the learned advocate appearing on behalf of the appellant is not in a position to point out any substantial question of law which arise in the present Second Appeal. Under the circumstances also, the present Second Appeal deserves to be dismissed.
[5.0] In view of the above and for the reasons stated above, present Second Appeal and the same deserves to be dismissed and is, accordingly, dismissed. No costs.
(M.R.
Shah, J.) menon Top