determination on the said issue but considered this aspect in
paragraph 13 of its judgment. The first appellate Court observed that
the defendant had pleaded that the plaintiff was not an agriculturist
and therefore, he had no right to purchase the suit land under Section
89 of the Act of 1958. The first appellate Court observed that when a
non-agriculturist desires to purchase agricultural land he has to seek
permission from the revenue authority. The first appellate Court held
that this could have been done at any point of time before execution of
the sale deed. The first appellate Court held that, according to the
counsel for the plaintiff, there were other lands standing in the name
of the plaintiff and the counsel had also produced the certificate of the
Talathi to that effect. The first appellate Court then held that the
agreement of sale also discloses that the plaintiff was an agriculturist
and in this background, the first appellate Court was not ready to
accept the submission of the defendant that the plaintiff was not an
agriculturist. It clearly appears from the observations in paragraph 14 of the trial Court's judgment and paragraph 13 of the first appellate
Court's judgment that both the Courts indeed held that the defendant
had failed to prove that the plaintiff was not an agriculturist, though
the Courts had not framed an issue in that regard. It appears from
the evidence of the parties that in the absence of framing of the issue,
the parties were not aware that they were required to prove that the
plaintiff was an agriculturist or not. In fact, the first appellate Court
considered some documents which were not permitted to be produced
on record under the provisions of order 41 Rule 27 of the Code of Civil
Procedure, while holding that the defendant had failed to prove that
the plaintiff was not an agriculturist. In view of the provisions of
Section 89 of the Act of 1958, the transfer of agricultural lands to non
agriculturist is barred, provided that the Collector or Officer
authorized by the State Government grants permission for such a
transfer. Since, the suit was filed by the plaintiff for specific
performance of contract and since the transfer of agricultural lands to
a non agriculturist was barred under Section 89 of the Act of 1958, it
was necessary for the trial court to have framed the issue as to
whether the plaintiff was an agriculturist and to have further remitted
the issue to the authority under the Act of 1958 for a decision on the
same. It is held by the Hon'ble Supreme Court in the case of Gundaji
Satwaji Shinde ..vs. Ramchandra Bhikaji Joshi reported in 1979 Mh
L J. 283 that if an issue arises in a civil court as to whether a person is
an agriculturist within the meaning of Tenancy Act, the Mamlatdar
alone would have exclusive jurisdiction under the Tenancy Act to
decide the same and the jurisdiction of the Civil Court is ousted. The
Court further added that if the Mamlatdar were to hold that the
plaintiff was not an agriculturist, obviously his suit for specific
performance in the civil court would fail because he is ineligible to
purchase the agricultural land. The Hon'ble Supreme Court had
considered the provisions of the Bombay Tenancy and Agricultural Act
(67 of 1948), while deciding the issue. The Hon'ble Supreme Court
then added that it could be incumbent on the civil Court in such a case
to refer the issue to the competent authority under the Tenancy Act.
However, in the instant case, the civil Court took upon itself
the task of deciding the issue as to whether the plaintiff was an
agriculturist, without specifically framing the issue. Both the Courts
were, therefore, not justified in observing that the defendant had
failed to prove that the plaintiff was an agriculturist, without framing
the issue and without referring the same to the tenancy authority, for
a decision on the same. The second substantial question of law framed
in this second appeal is answered in the affirmative and in favour of
the appellant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 289 OF 1996.
Ashok s/o Kisan Muneshwar V Janardhan s/o Parashram Bhagat,
CORAM : Smt. Vasanti A. Naik, J.
DATED : 09th September, 2008.
1. When this second appeal was admitted on 16th June, 1997,
this Court framed the following substantial questions of law.
(i) Whether permission under Section 89 of the
Bombay Tenancy and Agricultural Lands (Vidarbha Region)
Act 1958 has to be obtained before the decree or is it2
enough that such permission is obtained before the actual
execution of the sale deed;
(ii) Whether the question as to the claim of the
plaintiff that he is an agriculturist was liable to be referred
to the competent authority under Section 125 of the said
Act?
2. Few facts giving rise to the second appeal and the aforesaid
substantial questions of law are stated thus :
The appellant is the original defendant. A suit was filed by
the plaintiff/respondent for specific performance of contract of sale of
agricultural lands admeasuring 2 hectares 2 ares. The plaintiff
pleaded that the defendant was the owner of the suit land and had
agreed to sell suit land to the plaintiff for consideration of Rs.23,000/-.
An agreement of sale was executed on 10/4/1987 and earnest amount
of Rs.5,000/- was paid by the plaintiff to the defendant. The balance
consideration was to be paid at the time of execution of sale deed.
The plaintiff then pleaded that though he was ready and willing to
perform his part of the contract and had requested the defendant on a
number of occasions to perform his part, the defendant neglected to
perform his part of the contract by not executing the sale deed. Since,
the sale deed was not executed inspite of registered notice, a suit was
instituted by the plaintiff. 3
3. The defendant denied the claim of the plaintiff. The
defendant admitted that the suit land was owned by him. He denied
that he agreed to sell the suit land to the plaintiff for a consideration
of Rs.23,000/-. He also denied that he accepted the earnest amount of
Rs.5,000/-. According to the defendant, he was in need of some funds
for household expenses and business and, therefore, he obtained a
hand loan of Rs.5,000/- from the plaintiff. On obtaining the hand
loan, the possession of the suit property was delivered to the plaintiff
and the alleged agreement of sale was got executed. Inspite of the fact
that the defendant wanted to refund the amount of Rs.5,000/- to the
plaintiff, the plaintiff refused to accept the amount and to deliver the
possession of the suit land to the defendant. It was pleaded by the
defendant that the plaintiff was not an agriculturist and, therefore,
was not entitled to seek a decree for specific performance of contract.
It was pleaded by the defendant that the agricultural land could not
have been sold to the plaintiff as he was not an “agriculturist”, under
the provisions of Bombay Tenancy and Agricultural Lands (Vidarbha
Region) Act 1958( hereinafter referred to as “the Act of 1958”, for the
purpose of brevity) The defendant sought for dismissal of the suit.
4. The trial Court framed the necessary issues and held that
the plaintiff succeeded in proving that the defendant agreed to sell the
suit property to the plaintiff for a total consideration of Rs.23,000/-
and an amount of Rs.5,000/- was paid by the plaintiff as earnest4
amount. The trial Court further held that the plaintiff was ready and
willing to perform his part of the contract and the defendant neglected
to perform his part. The Court then held that the defendant did not
succeed in proving that the agreement of sale dated 10/4/1987 was
illegal and was not binding on him. The Court held that the defendant
utterly failed to prove that the suit transaction was a loan transaction.
The trial Court, therefore, granted a decree for specific performance of
contract in favour of the plaintiff. The findings recorded by the trial
Court were confirmed by the first appellate Court in an appeal filed by
the defendant. Both these judgments are challenged in the instant
appeal and the appeal is admitted on the two substantial questions of
law, which are referred hereinabove.
5. Shri G. G. Modak, the learned counsel for the appellant
submitted that both the Courts were not justified in decreeing the suit
of the plaintiff without framing the material issue as to whether the
plaintiff was an agriculturist. It is submitted on behalf of the appellant
that the appellant/defendant had categorically pleaded in his written
statement that the plaintiff was not an agriculturist and, therefore, not
entitled to purchase the suit property( agricultural land) in view of the
provisions of the Act of 1958. In this background, the learned counsel
for the appellant stated that it was necessary for the trial Court to
frame the issue as to whether the plaintiff was an agriculturist. It is
submitted on behalf of the appellant that non framing of the most5
material issue went to the root of the matter and in this background,
it is necessary to remand the matter to the trial Court to frame the
issue and remit the issue to the Tenancy Authority for deciding the
same. According to the learned counsel for the appellant, jurisdiction
of the civil Court to decide this issue is barred under the provisions of
the Act of 1958 and, therefore, it is necessary for the trial Court to
frame the issue and then remit it to the Tenancy Authority for deciding
the same. The learned counsel for the appellant relied on the decision
of the Honourable Supreme Court in the case of Gundaji Satwaji
Shinde vs. Ramchandra Bhikaji Joshi reported in 1979 Mh L J 283
to substantiate the aforesaid submissions. According to the learned
counsel for the appellant, the case before the Honourable Supreme
Court was based on similar set of facts and hence, in this case also it is
necessary to remand the matter to the trial Court for framing the
necessary issue and for remittance of the same to the Tenancy
Authority.
6. Shri S. S. Joshi, the learned counsel for the respondent
submitted that both the Courts have categorically recorded the
findings of fact that the plaintiff had succeeded in proving the
agreement of sale between the plaintiff and the defendant and that the
defendant had failed to prove that the suit transaction was a loan
transaction. It is further submitted on behalf of respondent that the
agreement of sale itself shows that the respondent was an agriculturist6
and therefore, it would not be proper to interfere with the judgments
and decree passed by both the Courts. Alternatively, it is submitted on
behalf of the respondent that the respondent does not have any
objection if the matter is remanded to the trial Court only for the
purpose of framing the issue as to whether the plaintiff was an
agriculturist with a direction to remit the same to the Tenancy
Authority for rendering its decision thereon. The counsel for the
respondent then submitted that though both the Courts have decreed
the suit of the plaintiff, the plaintiff is not able to reap the fruits of the
decree passed in his favour and hence, the trial Court and the Tenancy
Authority may be directed to decide the issue as early as possible.
7. It appears that it is not necessary to answer the first
substantial question of law involved in this second appeal and the
second appeal could be decided by answering the second substantial
question of law framed by the Court on 16th June, 1997.
8. To consider whether it was necessary for the trial Court to
frame the issue as to whether the plaintiff was an agriculturist, it is
necessary to consider the pleadings of the parties. It was not the case
of the plaintiff that he was an agriculturist. In paragraph 9 of the
written statement, the defendant had categorically pleaded that the
plaintiff was a government servant and did not possess agricultural
lands. According to the defendant, the plaintiff was not an7
agriculturist and hence, the agreement of purchase of suit land was
illegal, as the plaintiff had not taken the permission to purchase the
suit land, in view of the provisions of the Act of 1958. Thus, it appears
that in the specific pleadings a plea was raised by the defendant that
the plaintiff was not an agriculturist. Though, the trial Court did not
frame any issue in this regard, the trial Court observed in paragraph
14 of the judgment that the defendant had not examined any witness
to show that the plaintiff was not an agriculturist and had also not
deposed on this issue. The trial Court, therefore, observed in
paragraph 14 that the plea of the defendant that the plaintiff was not
an agriculturist could not have been accepted.
9. The first appellate Court also did not frame the point on
determination on the said issue but considered this aspect in
paragraph 13 of its judgment. The first appellate Court observed that
the defendant had pleaded that the plaintiff was not an agriculturist
and therefore, he had no right to purchase the suit land under Section
89 of the Act of 1958. The first appellate Court observed that when a
non-agriculturist desires to purchase agricultural land he has to seek
permission from the revenue authority. The first appellate Court held
that this could have been done at any point of time before execution of
the sale deed. The first appellate Court held that, according to the
counsel for the plaintiff, there were other lands standing in the name
of the plaintiff and the counsel had also produced the certificate of the8
Talathi to that effect. The first appellate Court then held that the
agreement of sale also discloses that the plaintiff was an agriculturist
and in this background, the first appellate Court was not ready to
accept the submission of the defendant that the plaintiff was not an
agriculturist. It clearly appears from the observations in paragraph 14
of the trial Court's judgment and paragraph 13 of the first appellate
Court's judgment that both the Courts indeed held that the defendant
had failed to prove that the plaintiff was not an agriculturist, though
the Courts had not framed an issue in that regard. It appears from
the evidence of the parties that in the absence of framing of the issue,
the parties were not aware that they were required to prove that the
plaintiff was an agriculturist or not. In fact, the first appellate Court
considered some documents which were not permitted to be produced
on record under the provisions of order 41 Rule 27 of the Code of Civil
Procedure, while holding that the defendant had failed to prove that
the plaintiff was not an agriculturist. In view of the provisions of
Section 89 of the Act of 1958, the transfer of agricultural lands to non
agriculturist is barred, provided that the Collector or Officer
authorized by the State Government grants permission for such a
transfer. Since, the suit was filed by the plaintiff for specific
performance of contract and since the transfer of agricultural lands to
a non agriculturist was barred under Section 89 of the Act of 1958, it
was necessary for the trial court to have framed the issue as to
whether the plaintiff was an agriculturist and to have further remitted9
the issue to the authority under the Act of 1958 for a decision on the
same. It is held by the Hon'ble Supreme Court in the case of Gundaji
Satwaji Shinde ..vs. Ramchandra Bhikaji Joshi reported in 1979 Mh
L J. 283 that if an issue arises in a civil court as to whether a person is
an agriculturist within the meaning of Tenancy Act, the Mamlatdar
alone would have exclusive jurisdiction under the Tenancy Act to
decide the same and the jurisdiction of the Civil Court is ousted. The
Court further added that if the Mamlatdar were to hold that the
plaintiff was not an agriculturist, obviously his suit for specific
performance in the civil court would fail because he is ineligible to
purchase the agricultural land. The Hon'ble Supreme Court had
considered the provisions of the Bombay Tenancy and Agricultural Act
(67 of 1948), while deciding the issue. The Hon'ble Supreme Court
then added that it could be incumbent on the civil Court in such a case
to refer the issue to the competent authority under the Tenancy Act.
10. However, in the instant case, the civil Court took upon itself
the task of deciding the issue as to whether the plaintiff was an
agriculturist, without specifically framing the issue. Both the Courts
were, therefore, not justified in observing that the defendant had
failed to prove that the plaintiff was an agriculturist, without framing
the issue and without referring the same to the tenancy authority, for
a decision on the same. The second substantial question of law framed
in this second appeal is answered in the affirmative and in favour of10
the appellant.
11. Though, it is necessary to remand the matter to the trial
Court to frame an additional issue as to whether the plaintiff is an
agriculturist, it is not necessary to disturb the concurrent findings of
fact recorded by the trial and the first appellate Court on the other
issues involved in the suit. The findings of fact recorded by both the
Courts on the other issues are based on a proper appreciation of the
material evidence on record, and could not be interfered with, in this
second appeal. The Courts have categorically found that the plaintiff
had succeeded in proving that the defendant had agreed to sell the
suit property to the plaintiff, the plaintiff was ever ready and willing to
perform his part of contract, the defendant had failed to perform his
part and the defendant further failed to prove that the suit transaction
was not an agreement of sale but was a loan transaction. Since, these
material issues are answered in favour of the plaintiff and against the
defendant, it is not possible for this Court to disturb these findings in
this second appeal. The findings recorded by both the Courts on all
other issues are, therefore, confirmed.
12. As the trial Court and the first appellate Court were not
justified in deciding the issue which was totally within the domain of
the tenancy authorities, it is necessary to remand the matter to the
trial Court for the purpose of framing an additional issue as to whether11
the plaintiff is an agriculturist and refer the same to the Tenancy
Authority for a decision on the same in accordance with law.
13. For the reasons aforesaid, the matter is remanded to the
trial Court for framing of an additional issue as to whether the plaintiff
is an agriculturist, with a further direction to remit the same to the
Tenancy Authority for a decision on the same, in accordance with law.
The parties undertake to appear before the trial Court on 6
th October,
2008 so that issuance of individual notices to the parties could be
dispensed with. Since the matter is an old one, the trial Court is
directed to frame the issue within a period of one month from the date
of the first appearance of the parties before the trial Court. The trial
Court is directed to immediately remit the issue to the Tenancy
Authority for a decision on the same. Since all the other issues are
answered by both the Courts in favour of the plaintiff, in case it is held
by the Tenancy Authority that the plaintiff is an agriculturist or was
entitled to permission to purchase the property from the defendant, in
view of the proviso to Section 89 of the Act of 1958, the defendant
would be liable to execute the sale deed of the suit property in favour
of the plaintiff within a period of three months thereafter. In case,
the defendant fails to execute the sale deed within a period of three
months from the grant of permission under Section 89, or answering
of the issue by the Tenancy Authority in favour of the plaintiff, the
plaintiff would be entitled to get the sale deed executed from the civil12
Court. However, in case, it is held that the plaintiff is not an
agriculturist or is also not entitled to purchase the property in view of
the proviso to Section 89 of the Act of 1958, the suit of the plaintiff
would stand dismissed.
Order accordingly. In the facts of the case, there would be
no order as to costs.
JUDGE
Andurkar.
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