SHANKAR Vs. RUKHMINIBAI

JUDGEMENT

(1.) FEELING aggrieved by concurrent judgments of Civil Judge (J.D.) and that of the Assistant District Judge, dismissing his Suit (Regular Civil Suit No. 25/1977), original plaintiff has come up in this second appeal.

(2.) FIELD Survey No. 25 to the extent of one (1) acre area situated at village Anterwali Sarati is subject matter of the Suit.

(3.) THE parties went to trial over certain issues struck by the learned Trial Judge. The learned Trial Judge held that the time was essence of the contract. The defendant failed to pay the remaining consideration on the stipulated date and subsequently, the contract of sale became null and void under provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. The learned Trial Judge, however, held that the plaintiff was not entitled to recover possession of the suit field in view of section 36A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act in as much as the jurisdiction of the Civil Court was ousted. The learned Civil Judge came to conclusion that when declaration of ownership is made in favour of the defendant under provisions of the said Act, then the same could not be challenged by way of Suit. The declaration could not be questioned in the Civil Court is the main plank on which dismissal of the Suit was ordered by the Trial Court. The first Appellate Court, however, did not endorse such a view but confirmed dismissal of the Suit for different reasons.