BHILA SAILA MARATHE DECEASED BY HIS LEGAL REPRESENTATIVES RUKHMABAI W/O BHILA MARATHE AND OTHERS Vs. VALCHAND BALCHAND JAIN AND ANOTHER

JUDGEMENT

(1.) TAKING exception to the dismissal of Special Civil Suit No. 25 of 1973 of the Court of Civil Judge, Senior Division, Dhulia, the Plaintiffs have preferred the present appeal.

(2.) THE said suit was filed for a declaration that the Court auction sale held in favour of the Defendant No. 1 was void in as much as the same contravened the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The Plaintiffs prayed for possession of the suit lands which consist of four agricultural lands situate at Villages Dongargaon and Kalmadi. A few facts leading to the filing of the said suit may be stated.

(3.) IT was the case of the plaintiffs that the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as "the said Act") were applicable to the said lands which had been the subject matter of the auction sale in favour of the Defendant No. 1. Neither the Defendant No. 1 nor the Defendant No. 2 had obtained permission for the transfer of the suit lands as provided in Rule 27 and consequently the said auction sale was void under Section 31 read with Section 9 of the said Act. Certain other contentions were also raised at the trial but in view of the submissions made in the present appeal which are restricted only to the validity or otherwise of the auction sale no reference to the same is made herein. The aforesaid contention regarding the auction sale being invalid was raised in paragraph 4 of the Plaint and the same was denied by a plea contained in paragraph 8 - A of the Written Statement. The trial Court held that the Plaintiffs had failed to prove that the auction in favour of the Defendant No. 1 was void under Section 9 of the said Act and proceeded to dismiss the Plaintiffs suit with costs.