1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.117 of 2010 Pravin Diwakar Channawar ..vs.. Vistarbai Vitthal Chandawar and ors. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.V.N.Morande Adv. for the appellant. Mr.V.R.Mundra Adv. for the respondents. C ORAM : C.L.Pangarkar, J. DATED : 30th March, 2010. 1. This second appeal has been preferred against the judgment and decree passed by the trial court and confirmed by the appellate court. 2. Respondent no.1 had instituted a suit for specific performance of contract alleging that respondents no.2 and 3 had entered into agreement of sale of the suit property of 30 decimal land in her favour. Since respondents no.2 and 3 i.e. defendants no.1 and 2 did not execute the sale-deed, the plaintiff instituted the suit. It is further contention of the plaintiff/respondent no.1 that inspite of agreement of sale in favour of the plaintiff, defendants no.1 and 2 i.e. respondent nos.2 and 3 executed a sale-deed in favour of the present 2 appellant in respect of the suit land also. The said suit was resisted by defendants no.1,2 and 3. The defendants denied that they had entered into an agreement of sale with the plaintiff and according to them, the plaintiff was not entitled to decree for specific performance of contract. 3. The learned judge of the trial court, upon consideration of the evidence found that there was an agreement of sale and defendants no.1 and 2 were liable to execute the sale-deed in favour of the plaintiff. Holding so, a decree was passed. The said finding was challenged by the present appellant, who is a purchaser, before the District Judge. The District judge also confirmed the finding recorded by the trial court and dismissed the appeal. Feeling aggrieved, this appeal has been preferred. 4. The learned counsel for the appellant mainly challenges the decree on the ground that the courts below have not taken into consideration the plea with regard to the transaction being hit by the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. Mr.Morande, the learned counsel for the appellant, submits that a plea was raised in the trial court that the transaction is hit by provisions of that Act. There is no doubt that such a plea was raised but the defendant never filed an application that an issue with regard to the fragmentation should be framed by the court. Consequently, no issue was framed. It appears that the parties, therefore, did not lead any evidence in the matter. Obviously, it is clear that neither party was 3 serious with regard to the issue. Further, the grounds raised in appeal before the appellate court go to show that such a ground was not raised before the first appellate court. It is, therefore obvious that for the first time in the second appeal such a ground has been raised. Therefore, such a question i.e. it is a fragment or not or whether Fragmentation Act applies to that area is a mixed question of fact and law. As such, it was necessary to be raised in the trial court itself. Same having not been raised in the trial court or in the first appellate court, it cannot be raised for the first time in the second appeal. It is brought to my notice that in pursuance to the decree passed by the court a sale-deed has also been executed in favour of respondent no.1. Now, therefore, the appeal has, in fact, become infructuous also. In the circumstances, I find that there is no substantial question of law involved in the appeal. The appeal is dismissed. JUDGE. chute