1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 482/2008 Sudeshwar Naresh Tiwari & anr ..vs.. Vitthal Shamrao Shastri & Ors. -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- Mr. V. Anand, Advocate for petitioner. Mr. R. M. Patwardhan, Advocate for respondent no. 1. Mr. V. A. Thakare, A.G.P. for respondent nos. 6 and 7. CORAM: J. H. BHATIA, J. DATED : 21 th JANUARY, 2009 1. Heard learned counsel for the parties. 2. There is no dispute that land survey no. 194 admeasuring 2 Hectare 86 R situated within the limits of village Kandri (Khadan), tq. Parshioni, dist. Nagpur belonged to respondent nos.1 to 5 jointly. Respondent nos. 1 to 5 entered into an agreement with petitioners on 20.12.2004 to sell the said land to petitioners at the rate of Rs. 1,32,000/- per acre and they also received an amount of Rs. 3,00,000/- as earnest money. The sale deed was to be executed on receipt of balance amount by 30.06.2005. Respondent nos. 2 to 5 executed sale deed of the land in favour of petitioners on 2 24.05.2006. Respondent no. 1 did not appear before the Sub-Registrar for execution or registration of sale deed, therefore, the sale deed was executed only by respondent nos. 1 to 4 and it was also registered. The petitioners claim that were put in possession of the land. 3. It appears that respondent no. 1 had some dispute with respondent nos. 2 to 5 in respect of the consideration amount received by them. Therefore, he moved an application before respondent no. 6-S.D.O. Ramtek challenging the sale deed on the ground that he had not sold his share under the sale deed and his 20% share is 58 R. According to him, due to the sale, a fragment is created and, therefore, the sale is illegal and void under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. Respondent no. 6-S.D.O. accepted that contention and held that the sale deed is null and void. The appeal filed by the petitioners before the Divisional Commissioner-respondent no. 7 also came to be dismissed. 3 In the 7/12 extract names of the petitioners were record as holders of 80% share to the extent of 2 Hectare 28 R while respondent no. 1 is shown to be the holder of Southern side 20% share admeasuring 58 R. In view of the fact that respondent no. 1 was also party to the agreement for sale and due to his personal dispute with the other respondents, he did not join in the execution of sale deed, the petitioners could file a suit for specific performance of the contract against respondent no. 1 and in that case, the question of creation of fragment would not arise. 4. Learned counsel for the petitioners, seeks to withdraw the present petition with liberty to file such civil suit against respondent no. 1 for specific performance of the contract to avoid creation of the fragment. In my considered opinion, it will be in the interest of justice to grant such leave and also to stay implementation of the order passed by respondent no. 6-Sub Divisional Officer, Ramtek for some time. 4 5. In the light of aforesaid circumstances, the petitioners are allowed to withdraw the writ petition with liberty to file suit for specific performance of the contract. In case a suit for specific performance of the contract is filed within six weeks, the impugned orders passed by respondent nos. 6 and 7 shall remain stayed for a period of three months from this date so that after filing of the suit, the petitioners may move an application before the civil Court for appropriate directions. 6. With these observations, the writ petition stands disposed of as withdrawn. No orders as to costs. JUDGE kahale