1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO.353/2011 Bhojram s/o Sampatji Thaokar ...Versus... Baba Jumdeoji Ek Mandal, Khapa through its Secretary and another Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. [Shri O.W. Gupta, Adv. for appellant] CORAM : A.B. CHAUDHARI, J. DATED : 10.08.2011. Heard learned Counsel for the appellant. He submitted that document of sale-deed that was executed was vitiated by fraud because agreement (Exh.54) indicated only 5 decimals of land which was agreed to be sold, as against which the sale-deed that was executed was for 15 decimals. According to him, thus Exh.54 was amply proved and therefore, the Courts below ought to have considered Exh.54 in proper perspective. According to him, there is one more question for consideration that sale of land as 15 decimals is nothing but a fragment and such a sale-deed is void ab initio in the light of the provisions of the Bombay Prevention of Fragmentation And Consolidation of Holdings Act, 1947. 2 I have heard learned Counsel for the appellant and I have also gone through the judgments recorded by the Courts below. At the outset, there is a finding of fact recorded by the both the Courts below that though there was agreement for sale of 5 decimals land, but the fact remains that no survey number out of which 5 decimals of land was mentioned in Exh.54. That being so, there was no point in relying on Exh.54 as a document to find out whether there was a fraud or not. It is not possible for this Court to substitute the view taken by both the Courts below. Next question raised by the learned Counsel for the appellant does not fall for consideration since the same was neither raised in the lower Court nor in the first appellate Court. Such question cannot be allowed to be raised, which is a mixed question of facts and law, for the first time in the second appeal. In the result, I find no merit in the second appeal. The same is, therefore, dismissed. No order as to costs. JUDGE ssw