( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 3 OF 2008 Anwar s/o. Bashir Shaikh and anr. .. Appellants Versus Allabaksha s/o. Miyasab Shaikh and anr. .. Respondents Shri A.V. Patil h/f. Shri V.D. Gunale, Advocate for the appellants. Shri S.S. Manale, Advocate for the respondents. CORAM : P.R. BORKAR,J. DATED : 23.07.2009 P.C. :- 1. Heard Shri A.V. Patil h/f. Shri V.D. Gunale for the appellants and Shri S.S. Manale, Advocate for the respondents. This Appeal From Order is filed being aggrieved ( 2 ) by order of remand passed by the Adhoc Additional District Judge-4, Latur, in Regular Civil Appeal No. 166 of 2006, decided on 20.09.2007. The learned Adhoc District Judge heard the appeal against judgment and decree passed by the Jt. Civil Judge, Senior division, Latur, in Special Civil Suit No. 115 of 2005, decided on 30.09.2006. 2. The District Court mainly remanded the matter on the ground that it has come on record that sons of plaintiff No.2 who were minor had come with a case that there was oral gift of block Nos. 25, 26 and 27 in their favour. It was oral gift called Hiba as per Mohammedan Law, effected on 28.05.1999. It was accepted on behalf of the minor sons of plaintiff No.2 by their grand-mother Rahimbee. So, the learned District Judge raised question whether in such circumstances whether the appellants/plaintiffs had right to execute sale-deed Exh.20 in favour of the defendants and observed that it was necessary to examine lagality and validity of Hiba and those minors were necessary parties. Therefore, direction was given that minor sons of plaintiff No.2 be brought on record and issues be framed and the matter may also be examined to consider if sale-deed is hit by ( 3 ) provisions of the Bombay Prevention of Fragmentation of Consolidation Act. 3. Heard Shri A.V. Patil h/f. Shri V.D. Gunale, Advocate for the appellant and Shri S.S. Manale for the respondents. The learned advocate for the appellant Shri Patil drew my attention to para 17 to 22 of the judgment of the Trial Court and also produced before me certified copy of judgment in Regular Civil Suit No. 306 of 2002. It shows that on behalf of two minor Abrar s/o. Walisab & Akil s/o. Walisab, their grand-mother Rahimbee w/o.Alabax Shaikh had filed the suit against present plaintiffs and defendants. In that case, the case of Hiba was made out. The suit properties were block Nos.25,26 and 27 of village Hali, Tal. Chakur, Dist. Latur. Plaintiffs set up case of title and actual possession on the basis of oral gift and also challenged the sale-deed in favour of present defendants by the plaintiffs dated 28.05.1999. Said suit came to be dismissed. It is worth noting that present plaintiff had remained absent and defendants had appeared and contested. So, as between the present defendants and sons of defendant No.2, the issue regarding Hiba is decided by the independent ( 4 ) suit. Said certified copy of judgment in Regular Civil Suit No. 306 of 2005, decided on 25.10.2005, decided by the Civil Judge, Junior Division, Chakur, is taken on record and marked “X”. This judgment was on record but First Appellate Court did not advert to it. Thus, the order of remand cannot be sustained in view of decision in Regular Civil Suit No.306 of 2002. It is not necessary to bring sons of plaintiff No.2 on record any more, since the dispute regarding Hiba is already decided between those minor sons and the defendants. 4. In these circumstances, the judgment and decree passed by the learned Adhoc District Judge-4, Latur dated 20.09.2007 in Regular Civil Appeal No.167 of 2006 is hereby set aside. The said Court is directed to take the appeal on its file and to decide the appeal afresh on merit. It may also consider the issue regarding effect of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act on the pleadings and evidence before it. It should also consider whether really such issue is raised by the pleadings of the parties and there is adequate material on record to consider it. ( 5 ) 5. The parties agree to appear before the District Court, Latur on 25.08.2009. In the circumstances of the case, the parties are directed to bear their own costs. [P.R. BORKAR,J.] snk/2009/JUN09/ao3.08