Decided on December 06,1979



S.B.MAJMUDAR - (1.) This appeal arising out of execution proceedings raises a short question of limitation regarding filing of special Darkhast No. 4 of 1971 at the instance of the present appellant original decree holder. The Executing Court has found the said Darkhast to be barred by limitation. That has prompted the appellant-original decree holder to prefer this appeal under the provisions of section 47 of the Civil Procedure Code. The respondents-original Judgment debtors have been duly served with the notice regarding the hearing of this appeal the respondent no. 1. original defendant no. 1 is since deceased without leaving any heirs and no application was made to bring her heirs on record. As a result the name of respondent no. 1 shall stand struck off from the record of this case. Only respondent Nos. 2 original defendant No. 2 now remains in the picture as a contesting respondent. He has also not chosen to appear before this Court and to contest the present appeal proceedings. The appeal is therefore heard in his absence.
(2.) The facts leading to this execution appeal have a chequered history and hence it is necessary to mention all the relevant facts at this stage. The present appellant had filed Special Civil Suit No 169/49 in Court of the Civil Judge (S. D.) Baroda for specific performance of an agreement dated 13-12-1946 for the sale of suit immovable properties The said agreement was entered in to by deceased respondent no. 1 who was original defendant no. 1 in the suit respondent no. 2 original respondent no. 2 was the subsequent transferee of the property in question from deceased respondent No. 1 and as he is in possession of these properties he is the only real contesting party original defendant no. 1 having lost all her interests in the suit property. The said suit came to be decreed by the learned trial Judge on 28-1-1951. The present respondent no. 2 who was vitally affected by the said judgment and decree preferred an appeal being First Appeal No. 640/51 before the then High Court of Bombay. The said appeal came to be dismissed by the then Bombay High Court on 26-9-1955. Thus the came for specific performance as passed against both the respondents came to be confirmed by the High Court. Thereafter the present appellant-decree-holder filed special Darkhast No. 21/56 in the Court of the Civil Judge (S. D.) Baroda on 5-4-1956 against both the jUdgment debtors. In the said Darkhast apart from the prayer for the costs of the suit and appeal before the High Court it was prayed that the defendants should be required to execute the sale deed of the suit properties in favour of the appellant-decree holder as he had already deposited the sum of Rs. 5940.00 as directed in the judgment and he also prayed for possession of the suit properties which were mentioned as S No. 472 (part) portion of S. No. 835 portion of S. No. 7 portion of S. No. 97 and S. No. 778 (vata) all situated at village Mota Fofalia in Sinor taluka of Baroda District. In addition to those agricultural lands the other suit properties for which relief in aforesaid terms was sought by the appellant-decree-holder in the said Darkhast were comprised of a house situated at Village Mota Fofalia as well as a Wada in the gamtham of village Mota Fofalia. Thus short the decree for specific performance was sought to be executed against the respondents judgment debtors.
(3.) It appears that in the aforesaid Darkhast proceedings the judgment debtors raised various objections the main being that the plaintiff is not entitled to have the sale deed of the suit lands; that some of the suit lands are fragments as defined in Bombay Prevention of Fragmentation Consolidation of Holdings Act 1947 and therefore under sec. 7 of the said Act no transfer thereof can be made in favour of the plaintiff; that the plaintiff is the holder of more than 200 bighas of lands and therefore he is not entitled to have the sale-deed of the suit lands in view of the Bombay Tenancy and Agricultural Lands Act which provides that no person could hold more than 48 acres of land. On these contentions of the respondent judgment-debtors various issues were framed by the Executing court out of which first two issues which ran as under were treated as preliminary issues; (1) Whether the decree-holder is not entitled to claim the specific performance as decreed in view of the contention that the decree-holder holds more than 48 acres of land and under the Bombay Tenancy Act 1948 no such person is entitled to acquire any more land ? (2) Whether the defendants contention that the decree cannot be executed as the lands for which sale deed is prayed to be passed are fragments within the meaning of Bombay Prevention of Fragmentation and Consolidation of Holdings Act is tenable? (3) The Executing Court took the view on these aforesaid preliminary issues that the appellant decree-holder was entitled to claim the specific performance even though he might the holding more than 48 acres of lands. It further took the views that as some of the lands covered by the decree are fragements the judgment debtors could not be directed to pass the sale-deed thereof to the plaintiff in contravention of the provisions of the Fragmentation Act and that required an inquiry into the further question as to whether the decree holder held some lands adjoining to such fragments so that when his lands adjoining the lands to be sold out are consolidated there may remain no fragment. The learned Judge of the ExeCuting Court therefore directed evidence to be led on issues Nos. 4 and S which ran as under (4) Whether it is proved that the land for which sale-deed is prayed is fragment ? (5) If yes whether the decree-holder proves that he owns some land in the neighbourhood of such fragment and hence there is no bar for the passing of the sale-deed to him ? It was further directed by the Executing Court that evidence upon issues Nos. 4 and 5 may be taken up and Darkhast may be finally disposed of according to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. The aforesaid order was passed by the learned Civil judge (S. D.) Baroda in Special Darkhast No. 21 of 1956 on April 10 1957;

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