1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1627/2005 1. Dadabhau s/o Dhondiba Dolas, Age : 55 years, Occu. Agri. 2. Baban s/o Dhondiba Dolas, Age : 58 years, Occu. Agri. Both R/o Kalas, Tq. Parner, Dist. Ahmednagar. ...Appellants. Versus 1. Kondiba s/o Dhondiba Dolas, Age : 61 years, Occu. Agril. C/o Antu Babu Bhise, Plot No. 80, Behind Zende Ration shop, Sidhartha colony, Chembur, Mumbai. 2. Maruti s/o Vithoba Gadage, Age : 68 years Occu. Nil. No.1 and 2 both R/o Kalas, Tq. Parner, Dist. Ahmednagar. 3. Bhima s/o Genu Kharat, Age : 70 years, Occu. Nil 4. Vijay s/o Bhima Kharat, Age : 41 years, Occu. Agri. R/o Hariram Bhimaji Chal, B-Anjirwadi Mazgaon, Mumbai-10. ..Respondents. Smt. K.S. Bhore, Advocate for appellants. Mr. R.N. Dhorde, Advocate for respondent No.2. 2 (Appeal dismissed as against respondents No.1, 3 and 4 as per Court order dated 07/04/2010) CORAM : A.V. NIRGUDE, J. Date : 30th June, 2010. ORAL ORDER : 1 This second appeal is challenging the concurrent findings of the courts below that the respondent no.1 had sold land Gat No. 387 to the respondent No.2 for legal necessity of Karta of joint Hindu family. Having gone through the reasons mentioned in the judgments for coming to such a conclusion, I do not see any reason to interfere in the finding recorded by the courts below. 2 However, there is peculiar feature to this case which has remained ignored. The appellants amongst other things, raised objection to the alienation of land Gat No. 387 saying that the respondent No.1 could not have sold the land in year 1974 to the respondent No.2 without previous sanction of the Collector as per the provisions of Section 5 of the Bombay Inferior Village Watan Abolition Act, 1958. The appellant in the plaint has specifically mentioned this objection. In reply to this objection, the respondents/defendants took up a stand that though the land was Mahar Watan land, on abolition of Watan, the land was re-granted to the respondent No.1. They further stated that thereafter, the respondent No.1 was entitled to sell the land. However, they did not mention as to how they could over come the bar created by section 5(4) of the Bombay Inferior Village Watan Abolition Act, 1958. Since the parties have mentioned in the pleadings that the alienation of land Gat No. 387 was affected due to the provisions of section 5, the learned judge of the trial court ought to have framed specific issue namely "whether 3 the defendants prove that the alienation of land Gat No. 387 was valid, despite of the provisions of Section 5 of the Bombay Inferior Village Watan Abolition Act, 1958 ?" The issue has not been framed by the trial Court. Even the first appeal court ignored this aspect though the appeal memo clearly made mention of this. In view of this, there is need to allow the parties to agitate this important aspect of the case at the trial stage. The case deserves to be remanded to that extent to the trial Court. The trial Court shall decide the above mentioned issue by allowing parties to lead evidence. 3. The trial Court shall dispose of this case as far as possible in one year from the date receipt of the writ of this Court. 4 Civil application 11222/2005 disposed of. (A.V. NIRGUDE, J.) tsk/sa1627.05