Allowed

Sudam Baburao Bagul and Anr. v. Mushir Ahmed Ayyub Shah and Rs

Bombay HC16 Nov 2011WP/6089/2011

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of applications to refer an issue regarding the plaintiff's status as an agriculturist to the Tenancy Court. The Court quashed the impugned orders and allowed the reference based on the exclusive jurisdiction of the Tenancy Court under Section 63.

What did the court decide?

Impugned orders Exh.58 and Exh.88 were quashed; application Exh.58 allowed; the issue referred to the Tenancy Court.

Sudam Baburao Bagul and Anr. Vs Mushir Ahmed… — Pension and Retirement Benefits | Bombay HC (2011)

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1 W.P.No.6089/11

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UNREPORTED

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

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WRIT PETITION NO.6089 OF 2011.

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1. Sudam Baburao Bagul,
Age 65 years, Occ.Agri &
Business.

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2. Sau. Shashikala Sudam Bagul,
Age 51 years,Occ.Household,
R/o Uasgalli, Opp. Agrawal Bhuwan,
Dhule, Tq.& Dist.Dhule. ... Petitioners.

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Versus

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1. Mushir Ahmed Ayyub Shah,
Age 41 years, Occ.Agri &
Business, R/o Ajmera Nagar,
Suryamandir Road, Dhule,
Tq. and Dist.Dhule.

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2. Latif Shah Musa Shah,
Age 47 years, Occ.Agri &
Business, R/o Hajarkholi,
Opp. Madani Masjid, Dhule,
Tq. and Dist.Dhule.

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3. Latif Rauf Deshmukh,
Age 41 years, Occ.Agri &
Business, R/o 4715/29,Firdos
Nagar, Nandiroad,Dhule Tq.
and Dist.Dhule.

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4. Alluddin Shaikh Salluddin,
Age 42 years, Occ.Agri &
Business, R/o Galli No.5,
Kisanbatti Khunt, Dhule,
Tq. & Dist.Dhule.

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2 W.P.No.6089/11

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5. Dr.Shaukatali Usman Shah,
Age 57 years, Occ.Agri &
Medical Practitioner,
R/o Muslim Nagar, Near
Natinal High School,
Dhule, Tq. & Dist.Dhule.

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6. Mohammad Asalam Abbas Ali,
Age 37 years, Occ.Agri &
Business, R/o Lokhandbazar
Near Ansar Nagar, Dhule,
Tq.and Dist.Dhule.

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... Respondents.

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Mr.S.P.Brahme, advocate for the petitioners.
Mr.S.P.Tiwari, advocate for Respondent Nos.1 to
6.

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CORAM : S.V.GANGAPURWALA,J.

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 Date : 16.11.2011.

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ORAL JUDGMENT :

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1.Heard.

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2.Rule. Rule returnable forthwith. With
the consent of the learned counsel for the
parties, taken up for final hearing.

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3.The present Respondents had filed suit
for specific performance of contract and "issues"

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3 W.P.No.6089/11

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came to be framed regarding the status of the
plaintiff as agriculturist. The petitioners
filed applications Exh.58 and Exh.88 for
referring the said issue to the Tenancy Court.
The applications filed by the petitioners came to
be rejected. Aggrieved thereby, the present
petition is filed.

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4.Mr.Tiwari, learned counsel for the
Respondents submits that earlier application Exh.
58 was rejected. The said fact was suppressed
while filing application Exh.88 for the same
purpose. The act of the petitioners is not
bonafide. The petitioners have certificate of
the Tahsildar, stating that the plaintiffs are
agriculturists. In such circumstances, there is
no need to refer the issue to the Tenancy Court.
Learned counsel contends that even otherwise the
Court can pass a conditional decree and this
aspect has been properly considered by the Court.

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5.When an issue is framed regarding
status of the plaintiffs as an agriculturists, in
view of the bar engulfed in Section 63 of the

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4 W.P.No.6089/11

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Bombay Tenancy and Agricultural Lands Act, the
said issue is required to be decided by the
Tenancy Court. Civil Court does not have any
jurisdiction to decide the same. The Apex Court
in a case of"Gundaji Satwaji Shinde Vs.
Ramchandra Bhikaji Joshi" reported in 1979 (2)
SCC 495, has specifically observed thus :

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"18.Thus, both on principle and on
authority there is no escape from
the conclusion that where in a suit
properly constituted and cognizable
by the Civil Court upon a contest
an issue arises which is required
to be settled, decided or dealt
with by a competent authority under
the Tenancy Act, the jurisdiction
of the Civil Court to settle,
decide or deal with the same is not
only ousted but the Civil Court is
under a statutory obligation to
refer the issue to the competent
authority under the Tenancy Act to
decide the same and upon the

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5 W.P.No.6089/11

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reference being answered back, to
dispose of the suit in accordance
with the decision of the competent
authority under the Tenancy Act.

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19.If,plaintiffsuedfor

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specific performance of a contract
for sale of agricultural land
governed by the provisions of the
Tenancy Act in the Civil Court and
the defendant appeared and raised a
contention that in view of the
provisions contained in S.63 of the
Tenancy Act the plaintiff being not
an agriculturist he is barred from
purchasing the land, the issue
would arise whether the plaintiff
is an agriculturist. Such an issue
beingwithintheexclusive
jurisdiction of the Mamlatdar, it
is incumbent upon the Civil Court
to refer the issue to the competent
authority under the Tenancy Act and
the Civil Court has no jurisdiction

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6 W.P.No.6089/11

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to decide or deal with the same.

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That issue arises in the suit from
which the present appeal arises and

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both the trial Court and the High
Court were in error in clutching at
a jurisdiction which did not vest
in them and, therefore on this
ground alone this appeal will
succeed."

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6.In view of the dictum of the Apex
Court, as the issue has been framed by the Civil
Court, the said issue about status of the
plaintiffs as an agriculturists has to be decided
by the Tenancy Court and will have to be referred
to the Tenancy Court.

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7.In light of the above, the impugned
orders below Exh.58 and Exh.88 are quashed and
set aside. Rule is made absolute in terms of
prayer clause (C) and the said application Exh.58
is allowed. The issue be referred to the
competent authority under the Tenancy Act, to
decide the same. The Tenancy authority to whom

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7 W.P.No.6089/11

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the issue is referred shall decide the said issue
expeditiously. However, there shall be no order
as to costs.

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 (S.V.GANGAPURWALA,J.)

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asp/office/wp6089.11

Sudam Baburao Bagul and Anr. v. Mushir Ahmed Ayyub Shah and Rs

Case brief

What is this about?

What did the court decide?

Sudam Baburao Bagul and Anr. v. Mushir Ahmed Ayyub Shah and Rs

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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