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2022 Supreme(Bom) 1092
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, (AURANGABAD BENCH)
M.G. Sewlikar, J.
Arjun Narayan Patil - Petitioner
Versus
Shitalkumar Balchand Jain - Respondent
Writ Petition No.8216 Of 2022
Decided On : 20-08-2022
For the Petitioner: Shri Vikram R. Dhorde.
For the Respondent: Shri T.K. Sant.
The central legal point established in the judgment is that the status of the plaintiff as an agriculturist is crucial to the validity of the sale deed under Section 63 of the Bombay Tenancy and Agricultural Lands Act.
Headnote:
Agriculturist - Suit Property - Bombay Tenancy and Agricultural Lands Act - Section 63
Fact of the Case:
The respondent filed a suit for declaration of ownership of a property and extinguishment of the defendant's right of purchase. The defendant contended that the plaintiff was not an agriculturist and therefore not competent to purchase the property.
Finding of the Court:
The court found that the issue of whether the plaintiff is an agriculturist is crucial to the validity of the sale deed and directed the trial court to frame an issue on this matter and refer it to the Tenancy Court for decision.
Issues: The main issue was whether the plaintiff was an agriculturist, which was crucial to the validity of the sale deed.
Ratio Decidendi: The court relied on Section 63 of the Bombay Tenancy and Agricultural Lands Act, which prohibits the sale of land to non-agriculturists without prior permission from the Collector. The court emphasized that the issue of the plaintiff's agriculturist status was necessary to determine the validity of the sale.
Final Decision: The impugned order was set aside, and the applications for framing additional issues and producing 7/12 extracts were allowed. The court directed the trial court to frame an issue on whether the plaintiff is an agriculturist and refer it to the Tenancy Court for decision.
Based on the provided legal document, here are the key points:
- The High Court of Judicature at Bombay (Aurangabad Bench) set aside the impugned order of the learned Civil Judge, Junior Division, which had rejected applications for framing additional issues and producing 7/12 extracts (!) (!) (!) .
- The case involves a dispute over a conditional sale deed dated 14th June, 1999, where the respondent (original plaintiff) claimed ownership, while the petitioner (original defendant) contended the transaction was money lending and the plaintiff was not an agriculturist (!) (!) .
- The central legal issue is whether the plaintiff is an agriculturist, as this status is crucial to the validity of the sale deed under Section 63 of the Bombay Tenancy and Agricultural Lands Act (!) (!) .
- The trial court had previously rejected the argument, holding the issue not germane because the suit primarily concerned whether the sale was out-and-out or conditional with re-purchase rights (!) (!) .
- The High Court relied on the precedent Topa Dhenu Rathod Vs. Maheshkumar Shankarlal Agrawal and the Supreme Court's decision in Gundaji Satwaji Shinde's case to establish that Section 63 prohibits the sale of agricultural land to non-agriculturists without Collector's permission (!) (!) .
- Citing Gundaji Satwaji Shinde's case, the Court held that if a defendant pleads the plaintiff is not an agriculturist, the Civil Court is precluded from enforcing the contract unless this specific issue is framed and decided (!) (!) .
- Section 63 of the Act explicitly bars the validity of a sale of land in favor of a person who is not an agriculturist or agricultural labourer without prior permission (!) (!) .
- The High Court directed the trial court to frame a specific issue: "whether plaintiff is an agriculturist," and to refer this issue to the Tenancy Court for decision within six months (!) .
- The applications for framing additional issues (Exhibit-162) and producing 7/12 extracts (Exhibit-170) were allowed (!) .
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of the parties, petition is taken up for hearing for final disposal at the admission stage.
2. This petition is preferred against the Judgment and order passed by the learned Civil Judge, Junior Division, Pachora, Dist.Jalgaon, dated 29th June, 2022 in R.C.S. No.23 of 2012, thereby rejecting applications Exhibit-162 i.e. for framing of additional issues and Exhibit-170 i.e. for producing 7/12 extracts.
3. Facts necessary for disposal of this petition can be stated briefly thus :
Respondent - original Plaintiff fled Special Civil Suit No.428 of 2005 (subsequently numbered as R.C.S. No.23 of 2012) for declaration that the plaintiff has become owner of the suit property vide conditional sale deed dated 14th June, 1999 and also for the declaration that the right of purchase by the defendant is extinguished.
4. The allegations made in the plaint are that on 14th June, 1999, plaintiff purchased suit property for consideration of Rs.1,50,000/- by registered sale deed. It was agreed that if the amount was paid within a period of three years, the sale deed will be treated as cancelled else it will be treated as out and out sale.
5. Petitioner - original Defendant fled written statement and contended that the defendant has not executed sale deed. It was a money lending transaction. Plaintiff is not an agriculturist. He does not own agricultural implements also. It is alleged that plaintiff is a money lender.
6. Petitioner – original Defendant fled an application Exhibit- 162 for framing additional issue whether the plaintiff is an agriculturist. Another application Exhibit-170 was fled vide which the plaintiff was called upon to produce 7/12 extract. These applications came to be rejected by the learned trial Court by the impugned order observing that the issues involved in the suit are whether the plaintiff is doing illegal money lending business and whether the plaintiff purchased suit property vide sale deed with a condition of re-purchase. Thus, the learned trial Court found that the issue proposed by the defendant as to whether the plaintiff is agriculturist or not is not germane for the decision of the suit. This order is impugned in this petition.
7. I have heard learned counsel for the petitioner and learned counsel for the respondent.
8. Learned counsel for the petitioner submits that the petitioner has specifically raised the defence in the written statement that the plaintiff is not an agriculturist. The petitioner – original defendant has contended that plaintiff is a money lender and therefore, he was not competent to purchase the suit property since he is not an agriculturist. This issue goes to the root of the matter. He placed reliance on the case of Topa Dhenu Rathod Vs. Maheshkumar Shankarlal Agrawal [1996 (2) Mh.L.J., 426].
9. Learned counsel for the respondent – original plaintiff submits that the defendant did not raise this issue till the entire evidence is over. He submits that the application is fled just to prolong the litigation. This issue is not germane for the decision of the suit. He submits that the issue involved in the suit is whether the sale deed is out and out sale or it is the sale with a condition of re-purchase. He submits that for the decision of this issue, it is not necessary for the Court to frame issue as to whether respondent – original plaintiff is an agriculturist or not.
10. Admittedly, the sale deed in question has been executed by the petitioner - original defendant. Execution of the sale deed is not in dispute. The only question is what is the nature of the transaction. According to the respondent - original plaintiff, the transaction is of sale with a condition of re-purchase. The allegations in the plaint show that an amount of Rs.1,50,000/- was paid and conditional sale deed was executed.
11. For the purchase of the property, as per Section 63 of the Bombay Tenancy and Agricultural Lands Act, permission of the collector
