1 S.A.No.106/10 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.106 OF 2010. 1. Kacharabai W/o Tukaram Bhujbal, Age 42 years, Occ.Agri. & Household. 2. Tukaram S/o Mahadu Bhujbal, Age 47 years, Occ.Agri., 3. Sopan S/o Karbhari Ghuge, Age 62 years, Occ.Agri., 4. Kero S/o Chima Gadekar, Age 52 years, Occ.Agri., 5. Yadav S/o Chima Gadekar, Age 49 years, Occ.Agri., 6. Sudam S/o Chima Gadekar, Age 47 years, Occ.Agri., 7. Madhu S/o Chima Gadekar, Age 45 years, Occ.Agri., All R/o Nimon, Talouka Sangamner, District Ahmednagar. ... Appellants. Versus Popat S/o Karbhari Ghuge, Age 65 years, Occ.Agri., R/o Nimon, Taluka Sangamner, Dist. Ahmednagar. ... Respondent. ... 2 S.A.No.106/10 Mr.S.S.Jadhavar, advocate for the appellants. Mr.A.N.Nagargoje, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,J. Date : 11.04.2011. ORAL JUDGMENT : 1. This is appeal by the original defendant No.1. The present Respondent had filed a suit seeking right to pre-emption in respect of the suit land. The said suit was partly decreed by the trial Court. The defendant Nos.1 and 2 were directed to execute the sale deed of the suit properties in favour of the plaintiff in the terms as laid down in the decree. The defendants preferred an appeal. The appellate Court dismissed the appeal confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the defendants have filed the present Second Appeal. 2. Mr.Jadhavar, learned counsel for the appellants contend that the properties were already partitioned long back and so no question arise of right of pre-emption or invoking Section 3 S.A.No.106/10 22 of the Hindu Succession Act. In partition, the suit land was allotted to the share of appellant No.3 and was put in exclusive possession of the property. The very fact that he was put in exclusive possession shows that the said property was allotted to the appellant No.3 in partition. According to him, the Courts below have not appreciated this aspect. The appellant No.3 has sold the suit property to the appellant No.1 vide registered sale deed dated 9.8.1991 for a valuable consideration and has put the appellant No.1 in possession of the property. According to the learned counsel, the Courts below have not discussed the evidence in that regard in proper perspective. 3. Per contra, Mr.Nagargoje, learned counsel submits that upon evaluation of evidence, the Courts have come to the conclusion that the suit property was kept joint though other properties were partitioned. The learned counsel further contends that the claim of the plaintiff to purchase the said property was not only based on Section 22 of the Hindu Succession Act but was 4 S.A.No.106/10 also based on the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. As such the plaintiff had the right to purchase the property and the defendants interse amongst themselves have sold the property without offering the said property to the plaintiff. 4. In light of the above, following substantial question of law arises : "Whether the judgments of the Courts below can be sustainable inasmuch as no issue regarding the right of pre-emption of the plaintiff vis-a-vis the Bombay Prevention of Fragmentation and Consolidation of Holdings Act." 5. Admit. 6. Taken up for final hearing with the consent of the parties. 5 S.A.No.106/10 7. With the assistance of the learned counsels, I have gone through the judgments. Perusal of the judgments, it is manifest that neither the trial Court nor the lower appellate Court has dealt with the issue about the right of pre-emption available to plaintiff vis-a-vis the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. No issue was framed by the trial Court nor any point for determination was framed in this regard by the lower appellate Court. When the parties are coming with the specific case, the Courts are expected to frame issues and deliver judgments on all the issues arising out of the pleadings. 8. In light of the fact that the Courts below have failed to frame the issue in respect of the right of plaintiff qua the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, the judgments can not be sustained and are required to be set aside. 9. I relegate the parties to the trial 6 S.A.No.106/10 Court by setting aside the impugned judgments passed by the trial Court and the lower appellate Court. The parties shall appear before the trial Court on 30.4.2011. The trial Court shall frame issue in respect of right of pre-emption available to the plaintiff under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. Thereafter shall give an opportunity to the parties to adduce evidence on the same and decide the whole suit. 10. All points are kept open. 11. I have not dilated on any of the issues. The Court below on reappreciation of the evidence shall decide the matter afresh. Taking into the account the fact that dispute is pending since long time, the trial Court shall make an endeavour to decide the said suit within a period of six (6) months from the date of appearance. 12. The Second Appeal is disposed of 7 S.A.No.106/10 accordingly. (S.V.GANGAPURWALA,J.) asp/office/sa10610