1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTIION SECOND APPEAL NO. 474 OF 2008 SECOND APPEAL NO. 474 OF 2008 SECOND APPEAL NO. 474 OF 2008 WITH CIVIL APPLICATION NO. 1164 OF 2008 Shri Vishnu Mahadeo Mali ... Appellant Vs. Shri Sahadeo Shivraj Kumbharkar & Anr. Respondents Ms. A.R.S.Baxi, Advocate, for the appellant. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 14th July, 2008. DATE: 14th July, 2008. DATE: 14th July, 2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the appellant, who is the original defendant. 2. The suit was filed by the respondents/plaintiffs contending that they had purchased the land having area of 25 Ares with 1/6th share of well water, electric motor electric connection 2 and pipeline situated in Gat No.398 (Old Gat No.573) from one Sadhu Suryavanshi for consideration of Rs.57,000/- under a registered sale deed dated 10.5.1993. It is contended that same land was previously sold by the defendant/appellant to the said Sadhu Suryavanshi for consideration of Rs.10,000/- under a registered sale deed dated 10.10.1986. The defendant began to interfere in their possession over the suit property. Therefore, they filed suit for perpetual injunction restraining the defendant from obstructing the possession over the suit land. The defendant contested the suit by filing written statement contending that he had not sold the land to Sadhu Suryavanshi and that the transaction was a mortgage transaction. He had never handed over possession of the land and that he is still in possession of the same. According to him, as the land was only mortgaged with Sadhu Suryavanshi, he could not sell the same to the plaintiffs. 3. Several issues were framed by the trial Court and after hearing the parties, the trial Court came to the conclusion that the transaction between the defendant and Sadhu Suryavanshi was not a transaction of mortgage, but of sale and that the same land has been sold away by the said Sadhu Suryavanshi to the 3 plaintiffs and the plaintiffs are in possession. It was also contended by the defendant that the land is a fragment and,therefore, could not be sold and, according to him, the sale being in violation of the provisions of the Bombay Prevention of Fragmentation & Consolidation of Holdings Act (for short, "the said Act") and, therefore, the sale is void ab initio. The trial Court rejected this contention holding that whole gat number is a fragment and in view of the provisions of Section 39 (3)(iii) of the said Act when whole fragment is sold away to an agriculturist, there is no bar for sale of the said land. With this finding, the suit came to be decreed in favour of the plaintiffs. The defendant preferred Regular Civil Appeal No.36 of 2005. That appeal also came to be dismissed. Hence, the defendant has preferred the Second Appeal against the concurrent finding of fact by both the Courts below. 4. The learned Counsel for the defendant-appellant has produced copies of both the sale deeds for perusal of this Court. On perusal of the sale deed dated 10.10.1986 executed by the defendant in favour of Sadhu Suryavanshi, I find that there is nothing in ther document to indicate that it was a mortgage transaction. It appears to be out-and-out sale. It is also material to note that as per these documents, the suit land was 4 previously having Gat No.2142. Thereafter it was given Gat No.575 and when this land was sold by Sadhu to the plaintiffs, it was bearing Gat No.400. The total area of the said Gat number is 25 Ares only and whole of the Gat has been sold away under these documents. In view of this, it is clear that there was no contravention of the provisions of the said Act. After perusal of these two documents and the Judgments rendered by the Courts below, I find that no substantial question of law is involved in the matter. 5. In the result, the Appeal stands dismissed summarily. 6. As the Appeal itself is dismissed, the Civil Application No.1164 of 2008 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)