Whether civil court has jurisdiction to decide correctness of findings recorded by Mamlatdar's court?

In my considered opinion, as this contention is not raised either before the Trial Court or before the Appellate Court and it is raised for the first time before this Court, it cannot be considered in writ jurisdiction. Even if this Court considers the same, it being a point of law, it cannot be upheld. Firstly, because, to operate any order or finding as res judicata, the parties to both the proceedings must be the same. Here in the case, admittedly, Respondent No. 1 was not a party to the proceedings before the Mamlatdar's Court. Secondly, once it is held that, Civil Court has jurisdiction to decide the correctness of the finding recorded by the Mamlatdar's Court, there is no question of res judicata operating in such case.

IN THE HIGH COURT OF BOMBAY

Civil Writ Petition No. 1826 of 2018

Decided On: 23.03.2018

 Vasudev Pandharinath Raikar Vs. Manoj Mohan Dalvi and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(4) MHLJ 927

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Whether Civil court can decide Issue as to whether plaintiff is 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,Vs Janardhan s/o Parashram Bhagat,

CORAM : Smt. Vasanti A. Naik, J.
DATED : 09th September, 2008.

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