Rohit B. Deo, J.

Heard Shri R.M. Pande, the learned Counsel for the petitioners and Shri A.N. Vastani, the learned Counsel for respondent.

2. Rule. Rule made returnable forthwith by consent of the learned Counsels for the parties.

3. The petitioners who are the defendants in Regular Civil Suit 215/2013 is assailing the order dated 29.06.2017 rendered by the Joint Civil Judge, Junior Division, Gondia, by and under which, the application preferred by the defendants under section 36B of the Maharashtra Prevention of the Fragmentation and Consolidation of Holdings Act, 1947 ('Act' for short) for referring the issue of the effect of the provisions of the Act on the sale-deed, to the Competent Authority, is rejected.

4. Few facts, which are broadly not disputed or are irrefutable may be noted.

5. The respondent plaintiff instituted Regular Civil Suit 215/2013 against the petitioners seeking, inter alia decree of permanent injunction and possession qua the suit property.

6. The respondent plaintiff is claiming ownership of the suit property by and under registered sale-deed dated 30.09.2011.

7. It is not in dispute that by amending the written statement, the petitioners defendants took a plea that the said sale-deed is hit by the provisions of the Act.

8. It is further apparent from record that one of the issues framed by the Trial Court is:

6. Whether defendants prove that the sale-deed of plaintiff is hit by the provisions of Prevention of Fragmentation and Consolidation Act.

9. The respondent plaintiff opposed the reference under section 36B contending, inter alia, that the application suffers from delay and laches and further that the defendants have not demonstrated that the conditions which are statutorily envisaged for attracting the prohibition under section 7 of the Act, are fulfilled.

10. The learned Trial Judge has recorded reasons which are strange, to put it mildly. Inexplicably, having framed issue 6 which is reproduced supra, the learned Judge observes in paragraph 9:

"In the present matter the suit is for permanent injunction and there is no real dispute under the Fragmentation and Consolidation Act."

The learned Judge then proceeds to observe that initially the defence was of total denial and it was only by way of amendment that the defence under the Act was raised. This observation is followed by a finding that the defendants are delaying the matter "and the crux of the suit is not the provisions or relief of Fragmentation and Consolidation Act".

11. The reasons recorded by the learned Judge are no reasons in the eyes of law. Non-application of mind to statutory provisions is writ large upon the face of the order impugned. The learned Judge failed to appreciate that issue 6 refers to the effect of the provisions of the Act on the sale-deed of which the suit claim is predicated and issue 7 pertains to the jurisdiction of the Civil Court. Concededly, the plaintiff did not challenge the order dated 22.11.2016, by and under which, issues 6 and 7 were framed. It is inexplicable as to how the learned Judge could have arrived at the conclusion that since the suit seeks permanent injunction, the dispute does not touch the provisions of the Act. It is further difficult to comprehend the observation of the learned Judge that the defence based on the provisions of the Act is raised by amending the written statement. Irrefutably, the amendment was allowed and issues 6 and 7 came to be framed without any demur from the plaintiff. The learned Judge clearly and obviously failed to look into the provisions of section 36A and 36B of the Act.

12. Section 36A of the Act reads thus:

36A. Bar of jurisdiction.

(1) No Civil Court or Mamlatdars Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the State Government or any officer or authority.

(2) No order of the State Government or any such officer or authority made under this Act shall be questi