1. One Lakhu Bala Pawar was the owner of the suit land bear-fag Gat No. 353 admeasuring 1 acre 25 gunthas situated at village vahagaon in Karad Tahsil of Satara district. On 23-6-1964, Lakhu sold this land to both the defendants for an amount of Rs. 700/-(vide Ex. 46). On the same day the defendants executed another agreement Ex. 41 in favour of Lakhu agreeing to reconvey the land to Lakhu for the same amount after the end of the year after repayment of the amount.
2. This transaction was validated under Section 81AA of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as the 'Fragmentation Act') by paying the prescribed penalty. In fact I shall point out that this validation was also not at all necessary in this case. After the death of Lakhu all his heirs and legal representatives who are plaintiffs 1 to 8 in this suit gave a notice dated 3-1-1968 to the defendants for reconveyance of the land after offering the amount of Rs. 700/- to them. Both the defendants declined and hence the plaintiffs filed this suit.
3. The defendants, inter alia, resisted the suit on the ground that it is a fragment under the Fragmentation Act and that is only the point which survives in this appeal and we are not concerned with the other contentions that were raised.
4. After considering the evidence and the legal position the learned trial Judge held that there was an agreement to resell the property and that the plaintiffs were entitled to specific performance. He held further that the suit was tenable even in view of Section 31 of the Fragmentation Act. Consequently he passed a decree in favour of the plaintiffs for specific performance and ancillary reliefs.
5. Being aggrieved the defendants preferred Civil Appeal No. 152 of 1971 in the District Court at Satara. The learned District Judge who heard the appeal reversed the finding of the trial Court and held that the contract was unenforceable in view of the provisions of the Fragmentation Act and so he allowed the appeal and dismissed the plaintiffs' suit but directed the parties to bear their own costs.
6 Feeling aggrieved the plaintiffs have preferred this second appeal.
7. In order to attract the bar of Section 31 of the Fragmentation Act, the holding must have been allotted under the Fragmentation Act. The relevant provisions of Section 31(1) of the Fragmentation Act run as follows:--
'31. (1) Notwithstanding anything contained in any law for the time being in force, no holding allotted under this Act, nor any part thereof, shall save as otherwise provided in this section-
(a) be transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrears of laud revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, lease, or otherwise; or
(b) be sub-divided, whether under a decree or order of a Civil Court or anyother competent authority, or otherwise, so as to create a fragment,without the previous sanction of the Col-lector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed.'
8. It will, therefore, be seen that in order to attract the bar of the section, the holding must have been allotted under this Act. There is nothing in the instant case to show that the suit land was a holding allotted to the defendants under this Act. On the admitted facts the suit land cannot be a holding allotted under the Fragmentation Act to the defendants because Lakhu executed a sale deed of the suit land to the defendants privately. The provision of allotment is laid down in Rule 11 of the Rules framed under the Fragmentation Act. So all these provisions clearly go to show that the suit land is not a holding allotted under this Act and, therefore, the bar under Section 31 of the Fragmentation Act cannot be attracted. Both the Courts below have proceeded on the assumption that this section is applicable and both of them have not taken into consideration the wording used in the section and that is why both of them have fallen in error.
9. The only other section which prohibits transfer is Section 7(1) of the Fragmentation Act and it runs as follows:--
'7. (1) No person shall transfer any fragment in respect of which a notice has been given under Sub-section (2) of Section 6, except to the owner of a contiguous survey number or recognised subdivision of a survey number.'
This provision clearly goes to show that this bar is attracted only if a notice is given under Sub-section (2) of Section 6 of the Fragmentation Act. It is not the contention in this case that any such notice was given under Sub-section (2) of Section 6 of the Fragmentation Act. The mere fact that this land is entered as a fragment in 7-12- extract does not prohibit the transfer of the land under the Fragmentation Act. I have so far pointed out that there are only two provisions in the Act inhibiting transfers of the fragments and I have so far pointed out that none of these two provisions are applicable in the instant case and so there can be no bar under the Fragmentation Act for enforcing the agreement of reconveyance.
10. Mr. Deshmukh appearing for the appellants invited my attention to Sub-section (3) of Section 31 of the Fragmentation Act. Therein ft is clearly laid down that 'nothing in Sub-section (1) shall also apply to any land which is to be transferred-
(i)-(ii) xx xx xx xx xx
(iii) to an agriculturist or agricultural labourer, in its entirety.....'
It will therefore be seen that even if the land is a holding allotted under this Art, the provisions of Sub-section (3) (iii) of Section 31, make it clear that the bar will not apply if the transfer is to an agriculturist or agricultural labourer. The learned District Judge has proceeded to observe that the present appellants are not agriculturists. Mr. Deshmukh urged that this finding is incorrect and I am in agreement with Mr. Deshmukh on this point. It is clear from the description given in the plaint that plaintiffs 1 to 4 nave styled themselves as agriculturists and this averment in the plaint is not at all controverted in the written statement and, hence it must be taken to be an admitted fact that the plaintiffs 1 to 4 who are widow and sons of Lakhu are agriculturists and, therefore, by virtue of Sub-section (3) (iii) of Section 31, a transfer in their favour does not fall within the mischief of Fragmentation Act. Looking at the matter from any point of view I do not see any reason why a decree should not be passed in favour of the plaintiffs. Miss Samant urged that this cannot be done under the Fragmentation Act, but I have so far pointed out that the provisions of the Fragmentation Act are not applicable in the first place and even if applicable Sub-section (3) (iii) of Section 51 clearly enables such a transfer to an agriculturist and plaintiffs 1 to 4 are agriculturists.
11. Thus the appeal deserves to be allowed and the decision of the lower appellate Court deserves to be set aside and that of the trial Court deserves to be restored. Hence I allow the appeal, set aside the judgment and decree of the lower appellate Court and restore the judgment and decree of the trial Court throughout, with no order as to costs in the peculiar circumstances of this case.
12. Appeal allowed.