DAMODHAR NARAYAN SAWALE (D) THROUGH LRS versus SHRI TEJRAO BAJIRAO MHASKE & ORS

Citation: [2023] 6 S.C.R. 175 · Decided: 04-05-2023 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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DAMODHAR NARAYAN SAWALE (D) THROUGH LRS
v.
SHRI TEJRAO BAJIRAO MHASKE & ORS.
(Civil Appeal No. 930 of 2023)
MAY 04, 2023
[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
Maharashtra Prevention of Fragmentation and Consolidation
of Holdings Act, 1947 : Applicability of the Act – On facts, suit field
comprising 3 acres and 20 guntas – Vide registered sale deed, 2
acres 20 guntas of the suit field purchased by first defendant from
second defendant – Remaining portion left with second defendant
– Later on, the co-defendant sold the said suit field to the appellant
vide registered sale deed in the year 1979 – Possession disturbed
by second defendant-first respondent – Suit for possession by the
appellant-plaintiff – Trial court held that appellant had not
purchased the suit field as claimed and executed only as a security
for a money lending transaction; and that the transaction violated
the provision under the Fragmentation Act – First appellate court
decreed the suit for possession on the strength of title in favour of
the appellant – In second appeal, the High Court restored the decree
of dismissal of the suit by the trial court holding that the sale or
transfer of one acre of land is sale of fragment, thus, void u/s. 9(1),
and the plaintiff cannot seek possession on the basis of such sale-
deed – On appeal, held: On facts, the plaint averments did not
disclose involvement of any such issue requiring a reference to a
competent authority under the Fragmentation Act – Case attempted
to be projected and proved by the second respondent is that in regard
to the two sale deeds, they were never intended to be acted upon
and in fact, they were never been acted upon – Furthermore, despite
the lack of foundational facts attracting the applicability of the
‘Fragmentation Act’ and on the question of raising of any right or
claim by way of counter-claims, it cannot be understood as to how
the trial court and the High Court came to frame issues and consider
such issue, that too, ignoring the statutory bar of jurisdiction to go
into and decide the issues – Second defendant did not make out
any case for attracting the provisions of the Fragmentation Act –
[2023] 6 S.C.R. 175
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SUPREME COURT REPORTS
[2023] 6 S.C.R.
High Court erred in setting aside the judgment and decree of the
First Appellate Court decreeing the suit and in restoring the decree
of dismissal of the suit of the trial court – Judgment passed by the
High Court is set aside and that of the First Appellate Court is
restored – ss. 8, 9, 31, 36 A, 36 B.
Code of Civil Procedure, 1908 : Ord. VIII r. 6 A – Counter-
claim by defendant – When can be raised – Held: A defendant could
not be permitted to raise counter-claim against co-defendant because
by virtue of Ord. VIII r. 6A, it could be raised by defendant against
the claim of the plaintiff – On facts, sole, vague averment in the
written statement filed by the second defendant in the suit referring
to the Fragmentation Act, which in no way could construe as a
counter-claim capable of treating as a plaint and governed by the
rules applicable to plaints in terms of Ord VIII r. 6 A and enabling
the court to pronounce a final judgment in the same suit, both on
the original claim and on the counter-claim – An inter-se dispute
on the validity of the sale deed, if at all between the second and
first defendants, could not have been considered in the subject-
suit, as it would amount to adjudication of right or a claim, by way
of counter-claim by one defendant against his co-defendant.
Allowing the appeal, the Court
HELD: 1.1 It is not the object or purpose of the Maharashtra
Prevention of Fragmentation and Consolidation of Holdings Act,
1947 to totally prohibit or prevent transfer of land within any
notified ‘local area’, but it is only aimed at preventing the
fragmentation of agricultural holdings and to provide for the
consolidation of agricultural holdings for the purpose of the better
cultivation thereof. [Para 18][191-E]
1.2 Though in a suit a defendant is entitled to raise
alternative inconsistent plea he could not be permitted to raise
pleas which are mutually destructive of each other and raising
such pleas would only work out to his detriment. [Para 19][191-
G-H]
1.3 While entertaining the contentions founded on the
Fragmentation Act raised by the second defendant, the trial court
as also the High Court have not bestowed attention to the
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statutory bar of jurisdiction under S

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