1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.641 OF 2008 Jagannath Shankar Malvi (deceased through his legal hiers) Jaishri Jagannath Malvi & ors .. Appellants. -versus Shivram Narayan Malvi .. Respondents. Shri K. S. Dewal, for the appellants Shri G.S.Godbole and Nitin Mulye for respondents.. CORAM: R. G. KETKAR, J DATED: 6th August, 2009. P.C. 1. Heard Mr. K.S. Dewal, learned counsel for the appellants and Shri. Godbole, learned counsel for respondents. The original defendant challenges the judgment and decree dated 20th July, 2005, passed by the learned District Judge, Raigad at Alibag in Civil Appeal No. 2 30 of 2004. The said appeal was preferred by the original plaintiffs challenging the judgment and decree dated 3lst December, 2003, passed by the Joint Civil Judge, Junior Division, Alibag. The claim of the respondent was for specific performance of the agreement of sale dated 20th May, 1994. The Trial Court, partly decreed the suit and held that the respondent plaintiff is entitled to recover Rs.10,500/- from the appellant defendant alongwith interest @ Rs.6% per annum from the date of the suit till realization. 2. The respondent preferred an appeal before learned District Judge, which was allowed and the learned District Judge decreed the suit for specific performance alongwith directions. In support of present appeal, learned counsel for the appellant raised following contentions. 1) That the suit property is joint Hindu family property and both the Courts have not framed the issue in that regard. 2) The respondent-plaintiff is not adjoining land 3 holder and 3) Order passed by the learned District Judge is exparte order and therefore, in his submission the appeal should be remitted to the District Court. 3. As against this Mr.Godbole, learned counsel for the respondent submitted that perusal of the agreement of sale as well as evidence of the appellant clearly indicates that the suit property was of absolute ownership of the appellant. He also submitted that the respondent- plaintiff is adjoining land holder which would be clear from the perusal of the agreement of sale itself as also the evidence led by the respondent plaintiff. Apart from this it is not disputed that the respondent is an agriculturist. 4. He further submitted that the appeal was filed on 1st March, 2004 and summons of appeal was duly served on 11.3.2004. He invited my attention to the report submitted by the bailiff indicating service on the appellant. He also pointed out that even injunction was 4 sought by the respondent plaintiff restraining appellant herein from creating third party interest in the suit property. That injunction order was also duly served on the appellant on 11.3.2004. He invited my attention to the report of bailiff to that effect. Apart from that in Regular Darkhast No.10 of 2000 the appellant had filed Vakalatnama on 27th April,2006. Thus, all along the appellants were aware of the pendency of the appeal. They were duly served. Despite that they chose not to enter appearance. In view of this he contended that no fault can be found with the order passed by the Appellate Court. 5. In so far as contention of the appellant that the agreement of sale is hit by section 3l of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, l947 (for short ‘Act”) is concerned, the same is devoid of substance. Section 3l(3) of the Act reads as under: “3l (l) Notwithstanding anything contained in any law for the time being in force, no holding allotted 5 under this Act, nor any part thereof shall save as otherwise provided in this section. (a) be transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, lease, or otherwise; or (b) be sub divided, whether under a decree or order of a Civil Court or any other competent authority, or otherwise, so as to create afragment, without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed. (3)Nothing in sub section (i) shall also apply to any land which is to be transferred (i) xx xx xx (ii) to the owner of the adjoining holding who cultivates his land personally; or 6 (iii) to an agriculturist or agricultural labourer, in its entirety; or 6. Undisputedly, respondent is agriculturist and having regard to the recitals in the agreement of sale and evidence on record it is clear that the respondent is adjoining land holder. In view of this I am of the opinion that the learned District Judge was justified in allowing the appeal and no fault can be found in the order of learned District Judge, Raigad. The suit property is owned by the original defendant as would be evident from agreement of sale. Second appeal does not raise any question of law much less substantial question of law. In the result appeal fails and is dismissed. (R.G. KETKAR, J)