JUDGMENT/ORDER 1. Heard learned counsel for appellant. 2. None for the respondents, though served. 3. Being aggrieved by the Judgment and Decree passed on 30/08/2017, by the learned Ad-hoc District Judge - 3, Nagpur in Regular Civil Appeal No. 79/2016, whereby the Judgment and Decree passed by the 6th Joint Civil Judge Junior Division, Nagpur on 19/11/2015 in Regular Civil Suit No. 821/2012 (New) Special Civil Suit No. 376/2005 (Old) is maintained by dismissing the appeal preferred by the appellant. 4. The second appeal is admitted vide order dtd. 16/02/2018, on following substantial question of law : "The plaintiff having proved the agreement of sale as well as his readiness and willingness to perform his part of the agreement, whether the Courts were legally justified in refusing the decree for specific performance in the light of provisions of Sec. 89 of the Maharashtra Tenancy and Agricultural Lands Act, 1958 and Sec. 8 of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947?" 5. The plaintiff case is as under : The defendant No.1 was owner of agricultural land No. 85/1, area 0.92 HR situated at Mouza Mahurzari, Tq. And District Nagpur. He agreed to sell the same to the plaintiff for consideration of Rs.2, 30, 000.00 accepted earnest amount Rs.1, 00, 000.00 and executed two agreements to sell on 27/02/2004 and 05/01/2005. Plaintiff was ready and willing to perform the part of contract. He was ready to pay remaining consideration amount and get the sale deed executed. He issued notices to defendant No.1 but all in vain therefore plaintiff constrain to file the suit for specific performance of contract and in the alternative for refund of earnest amount with interest. 6. Defendant No. 1 appeared and filed his written statement at Exh.14. He has admitted acceptance of Rs.1, 00, 000.00 from the plaintiff. He submitted that he was in dire need of money therefore he took hand loan from the plaintiff. The agreement to sell was executed for the surety of repayment of hand loan. The agreement to sell was restricted to his share. He was not agreed to sell the entire suit property. The suit property is ancestral joint property of defendant No.1 and his two sisters therefore he is not entitled to execute the sale deed and prayed for dismissal of the suit. 7. Defendant No. 2 to 9 also filed their written statement at Exh.33. He was not agreed to sell the entire suit property. The suit property is ancestral joint property of defendant No.1 and his two sisters therefore he is not entitled to execute the sale deed and prayed for dismissal of the suit. 7. Defendant No. 2 to 9 also filed their written statement at Exh.33. It was their contention that the suit property is ancestral property of defendant No.1 and his two sisters. The agreement to sell was not executed with consent of defendant No.2 to 9. It is not binding on their share. The plaintiff is not agriculturist therefore he is not entitled to purchase the suit property. They prayed for dismissal of the suit. 8. After considering the matter, facts and evidence placed on record by both the parties the learned lower court held that the plaintiff had established the execution of agreement but failed to prove that the agreements are enforceable hence dismissed the suit and allowed the alternate prayer of refund of earnest amount. 9. Being aggrieved and dissatisfied by the order of the learned lower court plaintiff preferred appeal before the learned Ad-hoc District Judge-3, Nagpur in RCANo. 79/2016. The learned lower appellate court also held that as the property is sold by the Respondent no. 1, 2 and 9 to one Neelima Shukla on 20/09/2013 therefore decree of specific performance can not be executed in the absene of said necessary party and gave concurrent finding as that of lower court that the plaintiff is not entitled for the partial specific performance of 1/3rd share of defendant no. 1 as the suit property is the joint property of defendant no. 1, 2 and 9 and accordingly, dismissed the appeal with cost. 10. The learned counsel for the Appellant contended that the Lower Appellate Court erred in holding that as per Sec. 89 of the Maharashtra Tenancy and Agricultural Lands (Vidarbha Region) Act, the appellant is not entitled for specific performance of contract as he is not agriculturist when that issue was necessary to frame and decided but never framed nor decided by Lower Court nor requested by the respondents to frame and decide that issue. The learned Lower Appellate Court also erred in holding that as per Sec. 8 and Sec. 8-AA of the Maharashtra Prevention of Fragmentation and Consolidation of Holding Act, the appellant is not entitled for specific performance in respect of 1/3rd share of defendant No.1 when the issue of applicability of the said Act to the appellant and the said land is more than 2 acres i.e. 0.92 H.R. was not framed and not decided by the Lower Court nor there is any pleading to that effect of respondents. 11. It is further contended that the Lower Appellate Court erred in holding that the suit property is sold by respondents to one Neelima Shukla on 20/09/2013 and she is in possession and she is not impleaded in the suit or appeal when the first time the respondent No.1 filed pursis at Exh.31 in appeal on 29/08/2007 at the time of arguments and there is no documentary and oral evidence before the Lower Court to come to this conclusion which need to be set aside by this court. 12. Learned counsel for appellant relied on following citations: i) Purushottam s/o Devidas Bhoyar Vs. Sau sheelabai w/o Kishor Shrungare and another [2016 (3) All MR 105] ii) Bharat Karsondas Thakkar Vs. M/s Kiran Construction Co. and others [ 2008 (6) SCALE 355 ] iii) Namdeo Shamrao Waghmare Vs. Ramdas Shripat Waghmare [ 2005 (2) Bom.C.R. 829 ] iv) Krishna S/o Sadashiv Kale Vs. Bhagawan Natthu Kale [ 2008 (4) Mh.L.J. 663 ] v) Hetram Baniram Rahangadale Vs. Mayabai Choitram Goplani and others [ 2014 (4) Bom.C.R. 449 ] 13. The learned counsel for the appellant in support of his contention that, the subsequent purchaser during pendency of proceedings has no right to defeat otherwise sustainable decree in favour of the plaintiff and he may have remedy against the defendant to claim damages for breach of agreement, relied on Purushottam s/o. Devidas Bhoyar (supra), wherein, it is held by this Court that, "the subsequent purchaser claiming under the respondent/defendant may have the remedy against the respondent/defendant to claim damages for breach of agreement, if any, but such subsequent purchaser claiming under respondent/defendant in the absence of privity of contract with the appellant/plaintiff, is not entitled to defeat otherwise sustainable decree in favour of the plaintiff by seeking to intervene and participate in the hearing of Second Appeal." 14. Learned counsel for the appellant also relied on Bharat Karsondas Thakkar (supra), wherein the Hon'ble Apex Court relied on a decision of a three Judge Bench in Kasturi V/s. Iyyamperumal and ors. [ (2005) 6 SCC 733 ] "where an identical question arose in almost identical circumstances, as to whether a third party or stranger to the contract could be added in a suit for specific performance merely in order to find out who is in possession of the contracted property or to avoid multiplicity of suits and such question was answered in the negative." 15. The learned counsel for the appellant contended that, the learned lower Appellate Court as well as learned Trial Court erred in applying Sec. 8 and Sec. 88-AA of the Maharashtra Prevention of Fragmentation and Consolidation of Holding Act for genuine relief of specific performance. It is contended that the agreement was for sale of land of 0.92 HR, which is more than 2 acres. It is submitted that there was no issue framed about applicability of Sec. 8, nor there was any pleading about applicability of Sec. 8 to the transaction. Therefore, there was no opportunity to adduce any evidence in that regard. The learned counsel for the appellant in support of his contention relied on Namdeo Shamrao Waghmare (supra) wherein this Court held that, "in the absence of any specific pleadings by the appellant that the agreement was hit by Sec. 8 of the Act, it is not possible to come to a finding that the findings given by both the Courts below are perverse". The learned counsel for the appellant also vehemently argued that the learned Appellate Court as well as learned Trial Court erroneously held that, in view of Sec. 89 of the Maharashtra Tenancy and Agricultural Lands Act, the transaction without permission of the Collector is barred. In support of his contention that, the permission of competent authority could not and cannot be a condition precedent for grant of decree for specific performance, relied on Krishna S/o Sadashiv Kale (supra) wherein this Court in para 10 observed as under:- "Learned Judge of the first appellate Court set aside the decree for specific performance of contract for two reasons i) that plaintiff was not an agriculturist and (ii) the permission by the competent authority was refused. Learned counsel for the appellants/plaintiffs contended that when the appellate Court held that there was a genuine agreement of sale and the plaintiff was ready and willing to perform his part of the contract, there was no reason for him to refuse a decree for specific performance and interfere with the discretion used by the Trial Court. He contended that permission of the competent authority could not and cannot be a condition precedent for grant of decree for specific performance. He also submits that if such permission is not granted ultimately, the decree will not be executed but then there is no reason to refuse a decree for specific performance." Similar view is taken in Hetram Baniram Rahangadale (supra). 16. In view of the citations relied on, there cannot be any impediment in granting specific relief even if there is no permission from the Collector as required under Sec. 89 of the Maharashtra Tenancy and Agricultural Lands Act. However, Sec. 8 of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act prohibits transfer of fragmentation below 2 acres of land though sale deed is of 0.92 H.R. land which is more than 2 acres. However, from the sale deed itself, it is clear that there are names of other heirs on 7/12 extract i.e. the names of one Sony Bhange, sister of defendant having two sons, defendant as well as sister Kamlabai Tabhane of the defendant. As such, there are three shares in the property, which reduced the share of the defendant. There is no signature of other co-sharers on the said agreement to sell nor there is any power of attorney in favour of the defendant. As such, the provision of Sec. 8 will apply to the transaction and it would not be executable agreement. The recitals in the agreement itself show that there are other co-owners of the said property. As such, though the learned Appellate Court is wrongly held that it is hit by Sec. 89 of the Maharashtra Tenancy and Agricultural Lands Act, he is right in holding that it is hit by Sec. 8 of Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act. As such, there is no substance in the appeal and the appeal stands dismissed. No order as to costs.