SHAH CHANDULAL VALCHAND Vs. AMTHAJI BHALAJI THAKORE

JUDGEMENT

(1.) The petitioner who is the original plaintiff has filed Regular Civil Suit No. 33 of 1978 in the Court of Civil Judge (J.D) Chanasama against the respondents who are the original defendants. The suit has been filed by the plaintiff for the purpose of obtaining possession on the basis of his title claiming the are under a sale made in his favour by the Defendants It appears that defendants Nos. 2 and 3 planted to and the written statement and ultimately succeeded in obtaining such an order from this Court. Thereafter they amended their written statement and applied to trial Court refer issues Nos. 8 and 9 raised in view of the amended written statement to appropriate authorities. The issues are:

(2.) What is urged by the learned Advocate for the petitioner is that merely because the defendants have raised a plea that the land which came to be sold so the plaintiff is a fragment the Civil Court did not lose its jurisdiction to decide that question and it was therefore not necessary for Civil Court to make a reference to the Prant Officer Patan for his decision on that issue. by further submitted that unless it is shown that the land is a fragment and that notice as contemplated by sub-sec. (2) of Sec. 6 of the Bombay Prevention of Fragmentation and Consolidation of the Holdings Act 1947 was given transfer of the fragment cannot be said to be in violation of the Act. He submitted that except raising a plea that the suit land is a fragment no material whatsoever has been produced by the defendants before the notice under Sec. 6(2) of the Act was given in respect of that land. She also submitted that there in no specific provision in the Act providing for a decision of any authority on the question as to whether a particular place of land is a fragment or not and whether transfer of such a fresh is void or not. It was submitted that only for the purpose of Imposing fine and for summary eviction the Collector has been given a power under the Act to find out whether the transaction is void or not. Since there is no specific provision requiring that a question as to whether a particular place of land is a fragment or not and whether its transfer is void is to be settled decided or dealt with by the State Government or any officer or authority the Civil Court had no jurisdiction to refer the issues.

(3.) Fragment is defined under the Act as a plot of land of less extent than the appropriate standard area determined under the Act. The State Government determines the standard area for each class of land in such local area as it may deem fit. On notification of standard area under sub-sec. (3) of Sec. for a local area all fragments in the local area are to be entered as such in the Record of Rights in such village record as the State Government may prescribe. Sub-sec. 2 of Sec.6 requires that notice of every entry made under sub-sec. (1) shall be given in the prescribed manner. Section 7 probities transfer of a fragment except to the owner of a contiguous survey number or reconised sub-division of a survey number. The proviso to sub-sec. (1) of Sec. 7 carves out such an exception but that is not relevant for the present revision application and therefore the same need not be refereed to Section 9 provides that transfer or partition of any loan contrary to the provisions of the Act shall be void Sub-secs (2) and (3) are also material or our purposes and therefore Sec. 9 as a who is set out hereinbelow.