NDLI: Damodhar Narayan Sawale (d) Through Lrs Vs. Shri Tejrao Bajirao Mhaske & Ors

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Code of Civil Procedure, 1908 (5 of 1908) Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (62 of 1947)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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 sale-deed – 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 – Counter-claim 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 subject-suit, as it would amount to adjudication of right or a claim, by way of counter-claim by one defendant against his co-defendant.
Judge	Hon'ble Mr. Justice C.T. Ravikumar
Neutral Citation	2023 INSC 491
Petitioner	Damodhar Narayan Sawale (d) Through Lrs
Respondent	Shri Tejrao Bajirao Mhaske & Ors
SCR	[2023] 6 S.C.R. 175
Judgement Date	2023-05-04
Case Number	930

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