Judgment

DESAI, J.:- This appeal by certificate arises out of Special Civil Suit No. 39/66 filed by the appellant-original plaintiff for specific performance of a contract dated 15th December 1965 for sale of land admeasuring 45 acres 5 gunthas bearing Survey No. 2 situated in Sholapur Mouje Dongaon in Maharashtra State for a consideration of Rs. 42,000/- out a which Rs. 5,000/- were paid as earnest money and a further amount of Rs. 5,000/- was paid on 22nd April 1966 when the period for performance of the contract for sale was extended by six months, which suit was dismissed by the trial Court and the plaintiffs First Appeal No. 117/68 was dismissed by the Bombay High Court.

2. Plaintiff claimed specific performance of a contract dated 15th December 1965 coupled with supplementary agreement dated 26th April 1966 for sale of agricultural land. This suit was resisted by the defendant, inter alia, contending that the land which was the subject-matter of contract was covered by the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (Tenancy Act, for short) and as the intending purchaser, the plaintiff was not an agriculturist within the meaning of the Act S. 63 of the Tenancy Act prohibited him from purchasing the land and, therefore, as the agreement was contrary to the provisions of the Tenancy Act the same connot be specifically enforced. The plaintiff sought to repeal the contention by producing a certificate Ext. 78 issued by the Mamlatder certifying that the plaintiff was an agricultural labourer and the bar imposed by S. 63 of the Tenancy Act would not operate. Plaintiff also contended that if the Court does not take note of Ext. 78, an issue on the pleadings would arise whether the plaintiff is an agriculturist and in view of the provisions contained in S. 70 (a) read with Ss. 85 and 85-A of the Tenancy Act the issue would have to be referred to the Mamlatdar for decision and the Civil Court would have no jurisdiction to decide the issue. The trial Court held that the certificate Ext. 78 had no evidentiary value and was not valid. On the question of the plaintiff being an agriculturist, the trial Court itself recorded a finding that the plaintiff was not an agriculturist. On the question of jurisdiction to decide the issue whether the plaintiff is an agriculturist, the trial Court was of the opinion that it being an incidental issue in a suit for specific performance of contract, which suit the Civil Court has jurisdiction to try, it will also have jurisdiction to decide the incidental or subsidiary issue and recorded a finding that the plaintiff was not an agriculturist. In accordance with these findings the plaintiffs suit was dismissed. In appeal by the plaintiff, the High Court agreed with the finding of the trial Court with regard to the validity of certificate Ext. 78. On the question of jurisdiction of the trial Court to decide the issue about the plaintiff being an agriculturist, the High Court agreed with the trial Court observing that Civil Court has undoubtedly jurisdiction to entertain a suit for specific performance, and while considering the main issue whether specific performance should be granted or not, Civil Court will have to consider whether there are prima facie any facts on account of which granting of specific performance would result into a transaction forbidden by law and, therefore, civil court will have jurisdiction to decide the subsidiary issue whether the plaintiff is an agriculturist. The High Court accordingly dismissed the appeal while agreeing with the trial Court that the plaintiff had failed to prove that he was an agriculturist and specific performance of contract for sale of agricultural land cannot be granted in his favour.

3. Mr. Lalit for the appellant did not invite us to determine the validity of certificate Ext. 78 certifying that plaintiff is an agricultural labourer. Therefore, the question which must engage our attention is whether Civil Court will have jurisdicti