High Court
Legal Reasoning
1sa-319-2022IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 319 OF 2022Ahmed Manikbhai Sayyed (Attar).Age: 67 years, Occ. Agril.,R/o. Shahartakli, Tq. Shevgaon,Dist. Ahmednagar.…..APPELLANT(Ori. Plaintiff)VERSUS1.Abidabee Yasin Sayyed (Attar),Age: 72 years, Occ. Agril.,2.Nashir yasin Sayyed (Attar),Age: 47 years, Occ. Agril.,3.Arif yasin Sayyad (AttarAge: 40 years, Occ. Agril.,4.Baby Dilawar Attar,Age: 49 years, Occ. Agril.,All R/o Nandur Road, Attar Vasti,Tq. Rahuri, Dist. Ahmednagar.5.Sangita Balasaheb Kharad,Age: 32 years, Occ. Agril.,R/o Deotakli, Tq. Shevgaon,Dist. Ahmednagar.…..RESPONDENTS(Ori. Defendants)______________________________________________________Mr. R. R. Karpe, Advocates for appellant______________________________________________________CORAM :ROHIT W. JOSHI, J. DATED :04st APRIL, 2025 2sa-319-2022JUDGMENT :-.The present appeal is filed under Section 100 of theCode of Civil Procedure in order to challenge judgment anddecree dated 19.03.2014 passed by the learned Civil JudgeJunior Division, Shevgaon in Regular Civil Suit No.482 of2012 and the judgment and decree dated 21.07.2020 passedby the learned Ad-hoc District Judge-1, Ahmednagar,dismissing the appeal arising out of the aforesaid decreepassed by the learned Trial Court. The appellant is theoriginal plaintiff.2.Parties will be referred in the judgment as plaintiff anddefendants.3.The plaintiff had filed Regular Civil Suit no.482 of 2012seeking relief of partition and perpetual injunction andpreemption with respect to the suit property, which is anagricultural land bearing gut no.189/1B2 (old survey no.100)admeasuring 1.28HR and gut no.189/2 admeasuring 1.21HR,both lands situated at village Deotakli Tahsil, Shevgaon,District- Ahmednagar. The father of the plaintiff, deceasedManikbhai and husband of the defendant no.1 Yasin were real 3sa-319-2022brothers. Both the brothers have expired. The defendantNo.1 is paternal aunt of plaintiff. Defendant No.2 to 4 arechildren of defendant No.1 and as such cousins of plaintiff.4.It is the case of plaintiff that land bearing gut no.189(old survey no.100) admeasuring 2.49HR was allotted toManikbhai and Yasin under a scheme for Rehabilitation ofProject Affected Persons. The plaintiff claims that Yasin hadtaken the property on 02.06.1977. He then states thatalthough, the property was simultaneously allotted, his fatherManikbhai expired before depositing the nazrana/consideration amount and thereafter, the plaintiff paid thenazrana / consideration and got the property on 25.03.1983.The plaintiff claims that he is owner of 1.28HR land anddefendants are owners of 1.21HR. According to the plaintiff,the properties are not separately demarcated. Although,according to him, the defendants are in occupation of westernside road facing portion of the land and eastern side portion isin possession of plaintiff. The plaintiff states that there is aNorth-South Dhura/Bandh, which is wrongly laid by thedefendants. According to him, the Bandh should be in East-West direction, so that both parties can have direct access to 4sa-319-2022the road, which passes along the western boundary of gutno.189.5.It is the contention of the plaintiff that the defendantsintended to sell the suit property i.e. portion of gut no.189/2,which is in their possession. The plaintiff claims that since thelands are not demarcated and plaintiff and defendants arefamily members, the plaintiff has right to seek preemption. Itis contended that it was not open for the defendants to sell theproperty to any third person. The plaintiff also claimed reliefof partition and separate possession and perpetual injunctionrestraining the defendants from selling the suit property.6.The learned Trial Court has dismissed the suit videjudgment and decree dated 19.03.2014. The learned TrialCourt has held that the plaintiff had failed to establishpreferential right of purchase. It is held that the plaintiff hadfailed to make out any case for grant of any relief and the suitwas dismissed accordingly.7.Aggrieved by the dismissal of the suit, the plaintiff filedFirst Appeal under Section 96 of the Civil Procedure Code,which came to be registered as Regular Civil Appeal No.147 of 5sa-319-20222014. Pending the hearing of appeal, the defendants sold theproperty to one Sangita Balasaheb Kharad. The said purchaserwas added as a party respondent in the appeal. The learnedFirst Appellate Court has dismissed the appeal after hearingthe parties vide judgment and decree dated 21.07.2020. Thelearned First Appellate Court has held that the lands were notjointly allotted to Manikbhai/father of plaintiff andYasin/husband of defdnant no.1. It is held that plaintiff is notentitled for the relief of preemption or partition or theperpetual injunction. The learned First Appellate Court hasconfirmed the findings recorded by the learned Trial Court.8.Being aggrieved by the dismissal of his appeal, theplaintiff has filed the present Second Appeal. Although, 14grounds are incorporated in the memorandum of appeal, theplaintiff/appellant has led emphasis on two questions, whichaccording to him are substantial questions of law. The firstcontention of the plaintiff is that, although, gut no.189 wasallotted to Manikbhai, his father and Yasin/husband ofdefendant no.1, on different dates and separate numbers weregiven to the land allotted to both of them, in essence, therewas no sub division of the gut number and for the said 6sa-319-2022purpose, the plaintiff relies upon evidence of PW-2, ShriKedar, who was working as Scrutiny Clerk in the Office ofDeputy Inspector of Land Records.9.The evidence of PW-2, Scrutiny Clerk from the Office ofDeputy Inspector Land Record does not advance the case ofthe plaintiff on the point that there was no sub division. Thesaid witness does not dispute that the total land in gut no.189was allotted to two individuals. The date of allotment is alsonot disputed. All that is said by this witness that there is noentry in the Office of Deputy Inspector of Land Recordregarding allotment of particular portion in gut no.189 to aparticular individual. The said evidence is rightly appreciatedby both the learned Courts to hold that the said evidencecannot lead to inference that allotment of properties to fatherof plaintiff and husband of defendant no.1 was jointallotment.10.The learned First Appellate Court has also dismissed thesuit for want of cause of action in as much as the suit was filedprior to actual sale of the suit property. The said finding ischallenged by the appellant contending that, in fact that thedefendant sold the suit property while the appeal was pending 7sa-319-2022is sufficient to establish that the apprehension expressed bythe plaintiff was genuine and the defendants indeed wereintending to sell the suit property to defeat his right ofpreemption.11.Heard Mr. Rahul Karpe, the learned Advocate for theappellant. Mr. Karpe has advanced submissions as above,predominantly contending that the parties are members of afamily and the entire gut number is allotted to the twobrothers as one unit, although formal dates of allotment maybe different due to the fact that consideration was notdeposited by the brothers at the same time. He contends thatadmittedly both the lands are a part of the same gut numberand parties are members of a family. This according to him issufficient to make out a right of preemption. He contends thatthe learned Courts have erred in holding that the plaintiff hadfailed to make out a right of preemption.12.As regards the findings by the learned First AppellateCourt that the suit was not maintainable on the ground thatthe property was not sold prior to filing of the suit, the learnedAdvocate has vehemently argued that the apprehension in the 8sa-319-2022amount of the plaintiff was proved to be correct by the act ofthe defendants in selling the suit property pending the finaldisposal of the appeal. He contends that the learned FirstAppellate Court has erred in holding that the suit was notmaintainable on the ground that the property was not in factalienated prior to filing of the suit.13.The second contention raised by the learned Counsel forthe appellant, criticizing the finding by the learned FirstAppellate Court that the suit was not maintainable on theground that the property was not sold prior to the suit is liableto be rejected in view of judgment of the Hon’ble SupremeCourt in the matter of Kumar Gonsusab & Ors. Vs.Mohammed Miyan Urf Baban and Ors (2008) 10 SCC 153. Inthe said case, the defendant had entered into an agreement ofsale with respect to the immovable property. In view of thesaid agreement, the plaintiff filed suit for preemption. Thesuit was dismissed by the learned Trial Court, one of thegrounds being that the suit was not maintainable since theproperty was not in fact sold. The First Appeal was alsodismissed. However, the Second Appeal filed before the HighCourt was allowed. The defendants then challenged the 9sa-319-2022decree passed by the High Court before the Hon’ble SupremeCourt. The Hon’ble Supreme Court allowed the appealholding that the suit was not maintainable, in view of the fact,the suit for enforcement of right of preemption was notmaintainable prior to sale of the property. The Hon’bleSupreme Court has placed reliance on commentary of Mullaon Muhammadan Law to hold that right to preemptionaccrues only on sale of immovable property. It is held thatunless the property is sold, suit for enforcement of right ofpreemption cannot be filed.14.In that view of the matter, the contention with respectto maintainability of the suit raised by the appellant is liableto be rejected. The learned First Appellate Court is right inholding that the suit filed by the appellant/original plaintiffwas not maintainable since the property was not sold prior tofiling of the suit.15.As regards the second contention that the plaintiff anddefendants are family members and the both portions of gutno.189 were jointly held by them, the question cannot be apure question of law, rather, it is pure question of fact. Both 10sa-319-2022the learned Courts have held that the lands were allottedseparately. It is clearly established on record that Yasin, thehusband of defendant no.1 took the land in the year 1977itself whereas Manikbhai, father of the plaintiff could notacquire the land during his lifetime as he did not pay theconsideration and the consideration was paid by the plaintiffin the year 1983 after demise of Manikbhai. The fact that theplaintiff and defendants paid the nazrana/considerationseparately is by itself sufficient to infer that the allotment ofland was not joint allotment as is contended. Had that beenso, nazrana/consideration for the entire land would beenrequired to be paid together and unless the entire amount waspaid, no portion of land could have been allotted. It is thecase of the plaintiff himself that the land was allotted to theYasin in the year 1977 itself and plaintiff got the land in theyear 1983.16.Apart from this, the plaintiff tried to contend that thetransfer of land by the defendants is hit by provisions of theMaharashtra Prevention of Fragmentation and Consolidationof Holdings Act. The said contention is liable to be rejected inas much as the plaintiff has failed to prove that the suit
Legal Reasoning
11sa-319-2022property sold by defendants was a fragment within themeaning of the said Act. There is no material on record tosubstantiate this plea.17.The learned Counsel for the appellant has placed strongreliance on judgment of the Hon’ble Supreme Court in thematter of Smt. Mattoo Devi Vs. Damodar Lal (2001) 3 S.C.R1009. Placing reliance on the said judgment, it is contendedthat although right of preemption can be enforced only after asale, it exists prior to the actual sale. The right which isalready in existence can be enforced only after the sale. Thesaid judgment also does not help plaintiff/appellant. It needsto be mentioned that the said judgment pertains to right ofpreemption between co-owners, which is not a case in thepresent appeal. In the present appeal, the parties cannot saidto be co-owners of their respective lands. The suit property inthe said case was a residential house. In the said case, theplaintiff had entered into agreement of sale with thedefendant and thereafter had expressed inability to purchasethe suit house. The issue was whether the right of preemptionwas waived by refusing to purchase the property.
Decision
12sa-319-202218.In that view of the matter, no substantial question oflaw arises for consideration in the present appeal. The appealis therefore liable to be dismissed and is dismissed with noorder as to costs.19.Pending Civil Applications, if any, stand disposed of.( ROHIT W. JOSHI, J. )Rushikesh/2025